PROVISIONAL REMEDIES A. Preliminary Attachment Topic: A writ of attachment is not extinguished by the execution of a compromise agreement between the parties Lim, JR. vs. Sps. Lazaro G.R. No. 185734. July 3, 2013 Perlas-Benabe, J. / Division Facts Lim, Jr. filed a complaint for sum of money with prayer for the issuance of a writ of preliminary attachment before the RTC, against Sps. Lazaro for the sum of P2,160,000.00, which represented the amounts stated in several dishonored checks. The RTC granted the writ of preliminary attachment and accordingly, three (3) parcels of land situated in Bulacan, covered by TCTs, registered in the names of Sps. Lazaro, were levied upon. The parties entered into a Compromise Agreement whereby Sps. Lazaro agreed to pay Lim, Jr. the amount of P2,351,064.80 on an installment basis, following a schedule of payments from September 2006 until October 2013 which was approved by the RTC Subsequently, Sps. Lazaro filed an Omnibus Motion, seeking to lift the writ of preliminary attachment annotated on the subject TCTs. The RTC granted the motion considering that the case had already been considered closed and terminated by the rendition of the Decision on the basis of the compromise agreement. Issue WON the writ of preliminary attachment was properly lifted. Held No. By its nature, preliminary attachment (Rule 57) is an ancillary remedy applied for not for its own sake but to enable the attaching party to realize upon the relief sought and expected to be granted in the main or principal action. While the provisions of Rule 57 are silent on the length of time within which an attachment lien shall continue to subsist after the rendition of a final judgment, jurisprudence dictates that the said lien continues until the debt is paid, or the sale is had under execution issued on the judgment or until the judgment is satisfied, or the attachment discharged or vacated in the same manner provided by law. A writ of attachment is not extinguished by the execution of a compromise agreement between the parties The lien or security obtained by an attachment even before judgment, is in the nature of a vested interest which affords specific security for the satisfaction of the debt put in suit. Verily, the lifting of the attachment lien would be tantamount to an abdication of Lim, Jr.'s rights over Sps. Lazaro's properties which the Court, absent any justifiable ground therefor, cannot allow. Topic: Attachment lien against the parties as well as their successors-in-interest should have been preserved, and the annotation thereof carried over to any subsequent certificate of title. Ligon vs. RTC, Branch 56 Makati City G.R. No. 190028. February 26, 2014 Perlas-Benabe, J. / Division Facts Leticia P. Ligon extend a short-term loan in the amount of P3M to Rosario Baladjay, payable in a month's time and secured by an Allied Bank post-dated check for the same amount. Rosario represented that they were in the process of selling their property in Ayala Alabang (subject property), covered by TCT No. 8502 in their name and that the proceeds of the said sale could easily pay-off the loan. Unfortunately, the Allied Bank check was dishonored and Rosario failed to pay. Ligon filed a complaint before the Quezon City RTC for collection of sum of money and damages, rescission of contract, and nullification of title with prayer for the issuance of a writ of preliminary attachment against Sps. Baladjay, Polished Arrow Holdings, Inc. (Polished Arrow), among others. Ligon discovered that the subject property had already been transferred to Polished Arrow, alleged to be a dummy corporation. As a result, TCT No. 8502 was replaced on by TCT No. 9273 in the name of Polished Arrow. Subsequently, an Amended Writ of Preliminary Attachment was issued and annotated on the dorsal portion of TCT No. 9273 on December 3, 2002. On February 18, 2003, a similar complaint with prayer for issuance of a writ of preliminary attachment was lodged before the Makati City RTC by Sps. Vicente against Sps. Baladjay and Polished Arrow. A writ of preliminary attachment also against the subject property was issued and annotated on the dorsal portion of TCT No. 9273 on March 12, 2003. Before the Quezon City Case was concluded, the Makati City RTC rendered a Decision dated December 9, 2004, rescinding the transfer of the subject property from Sps. Baladjay to Polished Arrow upon a finding that the same was made in fraud of creditors. Quezon City RTC rendered a Decision dated March 26, 2008 directing Sps. Baladjay to pay Ligon. However, when Ligon sought its execution, she discovered that the attachment annotation had been deleted from TCT No. 9273 when the subject property was sold by way of public auction on September 9, 2005 to the highest bidder, respondent Ting, for the amount of P9M during the execution proceedings in the Makati City Case. Issue WON the order of the Makati RTC to issue titles free from liens is proper. Held No. Case law instructs that an attachment is a proceeding in rem, and, hence, is against the particular property, enforceable against the whole world. Accordingly, the attaching creditor acquires a specific lien on the attached property which nothing can subsequently destroy except the very dissolution of the attachment or levy itself. The lien continues until the debt is paid, or sale is had under execution issued on the judgment, or until the judgment is satisfied, or the attachment discharged or vacated in some manner provided by law. Thus, a prior registration of an attachment lien creates a preference, such that when an attachment has been duly levied upon a property, a purchaser thereof subsequent to the attachment takes the property subject to the said attachment. Sps. Ligon's attachment lien against Sps. Baladjay as well as their successors-in-interest should have been preserved, and the annotation thereof carried over to any subsequent certificate of title, the most recent of which as it appears on record is TCT No. 31001 in the name of Techico, without prejudice to the latter's right to protect his own ownership interest over the subject property. The grave abuse of discretion of the Makati City RTC lies with its directive to issue a new certificate of title in the name of Ting (i.e., TCT No. 19756), free from any liens and encumbrances. This course of action clearly negates the efficacy of Ligon's attachment lien and, also, defies the legal characterization of attachment proceedings. Topic: Bonds must be issued by qualified bonding company for the concerned RTC in the proper city; Jurisdiction over the person must be had in Implementation of a writ of preliminary attachment. Torres vs. Satsatin G.R. No. 166759. November 25, 2009 Peralta, J. / Division Facts Torres Siblings each own 20sqm land in Cavite with TCTs. They agreed to sell said properties and authorized Nicanor Satsatin, through a Special Power of Attorney, to negotiate for the sale of the properties. Satsatin sold the property to Solar Resources, Inc. For P28M through post-dated checks. Torres Siblings allege that Satsatin remitted only P9M of the total. They also allege that Satsatin bought a house and car and registered the same under the name of Nicanor’s unemployed children. Torres filed before the RTC of Cavite a case for sum of money in October 25, 2002. Torres then filed on October 30, 2002 an exparte motion for issuance of a writ of attachment alleging that Satsatin is about to leave the Philippines. RTC then issued an order directing Torres to post a bond of P7M. After posting, the writ was implemented. Satsatin filed Motion to Discharge Writ of Attachment which was denied by the RTC. On Certiorari with the CA, the CA lifted the writ. Issue WON the writ was properly lifted on the ground that the bond was not proper and the court has no jurisdiction over the person of the defendant. Held Yes. Every bond should be accompanied by a clearance showing that the company concerned is qualified to transact business which is valid only for 30 days from the date of its issuance. However, it is apparent that the Certification by OCA at the time the bond was issued would clearly show that the bonds offered by Western Guaranty Corporation may be accepted only in the RTCs of the cities of Makati, Pasay, and Pasig. Therefore, the surety bond issued by the bonding company should not have been accepted by the RTC of Dasmariñas. Moreover, in preliminary attachment, the distinction between the issuance and the implementation of the writ of attachment is of utmost importance to the validity of the writ. The distinction is indispensably necessary to determine when jurisdiction over the person of the defendant should be acquired in order to validly implement the writ of attachment upon his person. In the instant case, assuming arguendo that the trial court validly issued the writ of attachment on November 15, 2002, which was implemented on November 19, 2002, it is to be noted that the summons, together with a copy of the complaint, was served only on November 21, 2002. Topic: Summons served later than the implementation of the writ does not confer a retroactive acquisition of jurisdiction. Mangila vs. CA and Guina G.R. No. 125027. August 12, 2002 Carpio, J. / Division Facts Respondent Guina filed a case for collection of sum of money (for freight forwarding services) against petitioner Mangila (exporter of seafoods to Guam). Summons, however, was not personally served on Mangila on the allegations that she had transferred residence and that she had already left the country. Without recourse to service by publication, Guina filed a motion for a writ of preliminary attachment and the trial court granted the same. Issue WON the writ of attachment was properly implemented. Held No. The writ was not properly implemented since jurisdiction over Mangila had not been acquire. The summons was served later than the implementation of the writ and the same does not confer a retroactive acquisition of jurisdiction. Respondent never showed that she effected substituted service on petitioner after her personal service failed. Alias summons belatedly served cannot be deemed to have cured the fatal defect in the enforcement of the writ. Subsequent service of summons does not confer a retroactive acquisition of jurisdiction over her person because the law does not allow for retroactivity of a belated service. Topic: Where the writ is issued upon a ground as the applicant's cause of action, the only way it can be lifted or dissolved is by a counterbond in accordance with Section 12 of Rule 57 Chuidian vs. Sandiganbayan G.R. No. 139941. January 19, 2001 Ynares-Santiago, J. / Division Facts Chuidian entered into an amicable settlement with Philguarantee in a collection case filed against him before the Santa Clara County Superior Court in the US. Chuidian surrendered the title to his companies in favor of the Republic while the latter absolved him from all civil and criminal liabilities. Instead of reimbursing Philguarantee the Republic stipulated to pay petitioner $5,300,000. The balance of $4,600,000 was to be paid through an irrevocable letter of credit (L/C) from which petitioner would withdraw. A balance of $4,400,000 remained when petitioner's properties were sequestered by the PCGG and payment on the L/C frozen. Philguarantee sought to vacate the compromise agreement but failed. In the meantime, PNB transferred the subject L/C to the Republic. Chuidian was impleaded in Civil Case No. 0027 filed with the Sandiganbayan for reconveyance, reversion, accounting and restitution of properties acquired in fraud of the government. The complaint was based on fraud. A writ of attachment was issued against the subject L/C. Almost 4 years later, petitioner moved to lift the attachment on the grounds that he has returned to the Philippines, hence, the "most potent ground" for the issuance of the writ no longer existed and that the continued attachment deprived him of his property without due process of law. The graft court denied the motion and absolved PNB from liability considering that it is now the national government which is the principal obligor of the letter of credit. Issue WON the attachment should be lifted. Held No. There are 2 courses of action available to petitioner to quash attachment: 1. to file a counterbond under Rule 57, Section 12, and 2. to quash the same on ground that it was irregularly or improvidently issued. The rule contemplates that the defect must be in the very issuance of the writ and not to facts or events that took place thereafter. To discharge attachment at this stage of the proceedings would render inutile any favorable judgment should the government prevail in the principal action against the latter. Where the writ is issued upon a ground as the applicant's cause of action, the only way it can be lifted or dissolved is by a counterbond in accordance with Section 12 of Rule 57. This was not availed of by petitioner. Thus, failure of petitioner to file a counterbond or to demonstrate any infirmity or defect in the issuance of the writ, negates its discharge. Chuidian cannot ask for the discharge or lifting of the writ of preliminary attachment pursuant to section 13. Had you wanted it discharged, you could have easily posted a counterbond under section 12. But you did avail of section 13 and that is not possible because if the ground in the principal action as well as in the provisional remedy of preliminary attachment is the same, we cannot discharge the writ pursuant to section 13 because we will be resolving the principal action. You cannot resolve a principal action by a mere motion. Topic: Preliminary Attachment – Section 5 of Rule 57 requires the deposit of money because the word “amount” commonly refers to or is regularly associated with a sum of money. LUZON DEVELOPMENT BANK v KRISHNAN G.R. NO. 203530 APRIL 13, 2015 PERALTA, J. / DIVISION Facts Erlinda Krishnan (Krishnan) is a client of Luzon Development Bank (Bank) where she maintained several accounts including time deposits. When her Time Deposit Certificates amounting to P28,597,472.70 became due, she presented the same to the Bank. The latter refused to honor them because they were allegedly fraudulent. Krishnan filed a complaint for Collection of Sum of Money and Damages and applied for a Preliminary Writ of Attachment. The Regional Trial Court granted the writ, by which the Bank’s accounts in BPI Family Bank amounting to P28,597,472.70 and in Central Bank amounting to P49,000,000.00 were garnished. The Bank, through motion, sought for the substitution of their garnished account with government securities. After asking the Bank to justify its request for substitution – which it did upon a supplemental motion – the RTC lifted the attachment. Such order was inhibited upon Krishnan’s motion. Krishnan, by way of Petition for Certiorari, questioned the substitution of the attachment from cash to property. The RTC resolved the petition by asking Krishnan to apply for new attachment worth P35,000,000.00 in cash to which the Bank shall file a counterbond for. The Bank asked that they be allowed to deposit Certificates of Title to real property instead, which was denied. The issuance of the writ was not held in abeyance so when it failed to file a counterbond, the original writ was reinstated. The Bank’s motion for reconsideration to the RTC and appeal to the Court of Appeals were denied. Issue WON bank property may be deposited in lieu of cash or a counterbond Held No. Section 2, Rule 57 of the Rules of Court explicitly states that “an order of attachment may be issued […], unless such party makes deposit or gives a bond as hereinafter provided in an amount equal to that fixed in the order, which may be the amount sufficient to satisfy the applicant’s demand or the value of the property to be attached as stated by the applicant, exclusive of costs.” Section 5 of the same rule explicitly states that “the sheriff enforcing the write shall without delay and with all reasonable diligence attach […] unless the former makes a deposit with the court from which the writ is issued or gives a counterbond executed to the applicant, in an amount equal to the bond fixed by the court in the order of attachment or to the value of the property to be attached, exclusive of costs.” From the foregoing, it is evidently clear that once the writ of attachment has been issued, the only remedy of the petitioners in lifting the same is through a cash deposit or the filing of the counterbond. Thus, the Court holds that petitioner’s argument that it has the option to deposit real property instead of depositing cash or filing a counterbond to discharge the attachment or stay the implementation thereof is unmeritorious. While it is true that the word “deposit” cannot be confined or construed to refer to cash, a broader interpretation thereof is not justified in the present case for the reason that a party seeking a stay of the attachment under Section 5 is required to make a deposit in an amount equal to the bond fixed by the court in the order of attachment or to the value of the property to be attached. The proximate relation of the word “deposit” and “amount” is unmistakable in Section 5 of Rule 57. Plainly, in construing said words, it can be safely concluded that Section 5 requires the deposit of money as the word “amount” commonly refers to or is regularly associated with a sum of money. /mimc Topic: Preliminary Attachment as an auxiliary remedy. NORTHERN ISLANDS, CO., INC. vs. SPOUSES DENNIS and CHERYLIN * GARCIA, doing business under the name and style "Ecolamp Multi Resources", respondents. G.R. No. 203240. March 18, 2015 PERLAS-BERNABE, J; DIVISION FACTS: Petitioner filed a Complaint with application for a writ of preliminary attachment, before the RTC against respondents, docketed as Civil Case No. Q-05-53699 (Main Case). Thereafter, respondents filed a Motion to Discharge Excess Attachment, alleging that the attachment previously ordered by the RTC exceeded by P9,232,564.56 given that the estimated value of the attached properties, including the garnished bank accounts, as assessed by their appraiser, Gaudioso W. Lapaz, amounted to P17,273,409.73, while the attachment bond is only in the amount of P8,040,825.17. The RTC, among others, denied the Motion to Discharge Excess Attachment, finding that the appraisal made by Lapaz was not reflective of the true valuation of the properties, and that the bond posted is sufficient security. Respondents filed a Motion for Partial Reconsideration of the Order specifically assailing the denial of their Motion to Discharge Excess Attachment. They prayed that the RTC refer to a commissioner, pursuant to Rule 32 of the Rules of Court, the factual determination of the total aggregate amount of respondents' attached properties so as to ascertain if the attachment was excessive. The foregoing motion was, however, denied by the RTC thus, respondents elevated the matter to the CA via petition for certiorari and mandamus. (Certiorari case) In the interim, the RTC rendered a Decision in the Main Case. It dismissed petitioner's Amended Complaint due to the absence of any evidence to prove that respondents had agreed to the pricing of the subject goods. The RTC's Decision was later appealed before the CA. Meanwhile, the CA partly granted Certiorari case ordering the RTC to appoint a commissioner as provided under Rule 32 of the Rules of Court as well as the subsequent discharge of any excess attachment if so found therein, and, on the other hand, denying respondents' Motion for Discovery. ISSUE: Whether or not the RTC had lost jurisdiction over the matter of the preliminary attachment after the petitioner appealed the decision in the Main Case. HELD: The petition is meritorious. Based on Section 9, Rule 41, it cannot be seriously doubted that the RTC had already lost jurisdiction over the Main Case. With the RTC's loss of jurisdiction over the Main Case necessarily comes its loss of jurisdiction over all matters merely ancillary thereto. Thus, the propriety of conducting a trial by commissioners in order to determine the excessiveness of the subject preliminary attachment, being a mere ancillary matter to the Main Case, is now mooted by its supervening appeal in CA-G.R. CV No. 98237. Attachment is defined as a provisional remedy by which the property of an adverse party is taken into legal custody, either at the commencement of an action or at any time thereafter, as a security for the satisfaction of any judgment that may be recovered by the plaintiff or any proper party. It is an auxiliary remedy and cannot have an independent existence apart from the main suit or claim instituted by the plaintiff against the defendant. Being merely ancillary to a principal proceeding, the attachment must fail if the suit itself cannot be maintained as the purpose of the writ can no longer be justified. The consequence is that where the main action is appealed, the attachment which may have been issued as an incident of that action, is also considered appealed and so also removed from the jurisdiction of the court a quo. The attachment itself cannot be the subject of a separate action independent of the principal action because the attachment was only an incident of such action. Topic: Damages; Application for damages against the wrongful attachment, whether filed before the trial court or appellate court, must be with due notice to the attaching party and his surety or sureties. Excellent Quality Apparel, Inc. vs. Visayan Surety & Insurance Corporation G.R. No. 212025. July 1, 2015 Mendoza, J.; Division Facts On March 26, 1996, petitioner Excellent Quality Apparel, Inc. entered into a contract with Multi-Rich Builders (Multi-Rich), a single proprietorship, (Wilson G. Chua) for the construction of a garment factory within the Cavite Philippine Economic Zone Authority (CPEZA). Included in the contract was an Arbitration Clause in case of dispute. On November 27, 1996, the construction of the factory building was completed. On February 20, 1997, Win Multi-Rich Builders, Inc. (Win Multi-Rich) was incorporated. On January 26, 2004, Win Multi-Rich filed a complaint for sum of money and damages against petitioner before the RTC. It also prayed for the issuance of a writ of attachment, claiming that its VP was about to abscond and that petitioner had an impending closure. Win Multi-Rich then secured the necessary bond in the amount of P8,634,448.20 from respondent Visayan Surety and Insurance Corporation (Visayan Surety). In the Order, dated February 2, 2004, the RTC issued a writ of preliminary attachment in favor of Win Multi-Rich. To prevent the enforcement of the writ of preliminary attachment on its equipment and machinery, petitioner issued Equitable PCI Bank Check No. 160149, dated February 16, 2004, in the amount of P8,634,448.20 payable to the Clerk of Court of the RTC. On February 19, 2004, petitioner filed its Omnibus Motion, seeking to discharge the attachment. Petitioner also questioned the jurisdiction of the RTC due to the presence of the Arbitration Clause in the contract. It asserted that the case should have been referred first to the Construction Industry Arbitration Commission (CIAC) pursuant to E.O. No. 1008. Motion was denied by the RTC because the issued could be resolved after full blown trial. On April 26, 2004, petitioner filed its Answer with Compulsory Counterclaim before the RTC. It denied the material allegation of the complaint and sought the immediate lifting of the writ of attachment. It also prayed that the bond filed by Win Multi-Rich to support its application for attachment be held to satisfy petitioner's claim for damages due to the improper issuance of such writ. On April 29, 2004, the RTC issued another order directing the deposit of the garnished funds of petitioner to the cashier of the Clerk of Court of the RTC. Win Multi-Rich then filed a motion, dated April 29, 2004, to release petitioner's cash deposit to it. Notably, the motion was granted by the RTC in the Order, dated May 3, 2004. Subsequently, on May 7, 2004, Win Multi-Rich posted Surety Bond No. 10198 issued by respondent Far Eastern Surety and Insurance Co., Inc. (FESICO) for the amount of P9,000,000.00, to secure the withdrawal of the cash deposited by petitioner. Thus, Win Multi-Rich was able to receive the funds of petitioner even before the trial began. Issue WON the Sureties are liable for damages. Held Visayas Surety – No. The party applying for the order of attachment must thereafter give a bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ. The purpose of an attachment bond is to answer for all costs and damages which the adverse party may sustain by reason of the attachment if the court finally rules that the applicant is not entitled to the writ. In this case, the attachment bond was issued by Visayan Surety in order for Win Multi-Rich to secure the issuance of the writ of attachment. Hence, any application for damages arising from the improper, irregular or excessive attachment shall be governed by Section 20, Rule 57. The requisites under Section 20, Rule 57 in order to claim damages against the bond are as follows: 1. The application for damages must be filed in the same case where the bond was issued; 2. Such application for damages must be filed before the entry of judgment; and 3. After hearing with notice to the surety. In the present petition, the Court holds that petitioner sufficiently incorporated an application for damages against the wrongful attachment in its answer with compulsory counterclaim filed before the RTC. Clearly, petitioner failed to comply with the requisites under Section 20, Rule 57 because Visayan Surety was not given due notice on the application for damages before the finality of judgment. The subsequent motion for execution, which sought to implicate Visayan Surety, cannot alter the immutable judgment anymore. Far Eastern Surety – Yes. While Visayan Surety could not be held liable under Section 20, Rule 57, the same cannot be said of FESICO. In the case at bench, to forestall the enforcement of the writ of preliminary attachment, petitioner issued Equitable PCI Bank Check payable to the Clerk of Court of the RTC. Pursuant to the RTC Order, dated April 29, 2004, the garnished funds of petitioner were deposited to the cashier of the Clerk of Court of the RTC. Strictly speaking, the surety bond of FESICO is not covered by any of the provisions in Rule 57 of the Rules of Court because, in the first place, Win Multi-Rich should not have filed its motion to release the cash deposit of petitioner and the RTC should not have granted the same. The release of the cash deposit to the attaching party is anathema to the basic tenets of a preliminary attachment. The garnished funds or attached properties could only be released to the attaching party after a judgment in his favor is obtained. Under no circumstance, whatsoever, can the garnished funds or attached properties, under the custody of the sheriff or the clerk of court, be released to the attaching party before the promulgation of judgment. Indeed, FESICO cannot escape liability on its surety bond issued in favor of petitioner. The purpose of FESICO's bond was to secure the withdrawal of the cash deposit and to answer any damages that would be inflicted against petitioner in the course of the proceedings. Also, the undertaking signed by FESICO stated that the duration of the effectivity of the bond shall be from its approval by the court until the action is fully decided, resolved or terminated. Topic: Preliminary Attachment – The applicant must sufficiently show the factual circumstances of the alleged fraud because it cannot be inferred from the debtor’s mere non-payment. WATERCRAFT VENTURE v WOLFE G.R. NO. 181721 SEPTEMBER 9, 2015 PERALTA, J. / DIVISION Facts Watercraft Venture Corporation (Watercraft) is engaged in the business of, among others, storing boats. Watercraft hired Alfred Raymond Wolfe (Wolfe), a British national and resident of Subic Bay Freeport Zone, as its Shipyard Manager. During his employment, Wolfe stored a sailboat (Knotty Gull) in Watercraft but never paid for storage fees. When Wolfe’s employment was terminated, he pulled out Knotty Gull and signed a clearance where acknowledges an outstanding obligation of USD16,324.82 representing unpaid storage fees. Despite repeated demands, Wolfe failed to pay the same. Watercraft filed a complaint for Collection of Sum of Money with Damages and applied for a Writ of Preliminary Attachment on the ground that Wolfe was trying to defraud them by evading payment. The Regional Trial Court found the application for the writ sufficient in form and substance, thereby granting the same. Pursuant to the writ, Wolfe’s two vehicles (Mercedes Benz and Toyota Corolla) were levied upon and his accounts at BPI were garnished. A pick-up truck (Dodge) was also subject to attachment but a certain Jeremy Simpson filed a Motion for Leave to Intervene claiming that he is the owner. Wolfe filed a Motion to Discharge the writ on the ground that the existence of fraud was not sufficiently alleged by Watercraft. Further, he claimed that he is not a flight risk. The trial court denied the motion hence Wolfe filed a Petition for Certiorari before the Court of Appeals. The CA granted Wolfe’s petition on the ground that RTC committed grave abuse of discretion by issuing the writ ex-parte despite the applicant’s failure to allege fraud properly in its affidavit. Issues (1) WON the issuance of the writ of preliminary attachment ex-parte despite the applicant’s affidavit of merit being squarely refuted by the defendant is valid (2) WON the affidavit of merit filed by Watercraft sufficiently alleged the existence of fraud Held (1) No. A writ of preliminary attachment should be resorted to only where necessary and as a last remedy because it exposes the debtor to humiliation and annoyance. It must be granted only on concrete and specific grounds and not merely on general averments quoting the words of the rules. Since attachment is harsh, extraordinary, and summary in nature, the rules on the application of a writ of attachment must be strictly construed in favor of the defendant. If the party against whom the writ is prayed for squarely controverts the allegation of fraud, it is incumbent on the applicant to prove his allegation. (2) No. The sufficient or insufficiency of an affidavit depends upon the amount of credit given it by the judge, and its acceptance or rejection upon his sound discretion. Wolfe’s mere failure to pay the boat storage feeds does not necessarily amount to fraud, absent any showing that such failure was due to insidious machinations and intent on his part to defraud Watercraft of the amount due it. Fraudulent intent is not a physical entity but a condition of the mind beyond the reach of the senses, usually kept secret, very unlikely to be confessed, and therefore can only be proved by unguarded expressions, conduct, and circumstances. Thus, the applicant must sufficiently show the factual circumstances of the alleged fraud because it cannot be inferred from the debtor’s mere nonpayment. An affidavit which does not contain concrete and specific grounds is inadequate to sustain the issuance of such writ. Mere general averments render the writ defective and the court that ordered its issuance acted with grave abuse of discretion amounting to excess of jurisdiction. /mimc Topic: Execution of the judgement on the Preliminary attachment. PHIL-AIR CONDITIONING CENTER, vs. RCJ LINES and ROLANDO ABADILLA, JR. G.R. No. 193821. November 23, 2015. BRION, ** J; Division FACTS: Petitioner sold air-conditioning units for buses to respondent. For failure of the respondent to pay the balance despite demand petitioner filed a complaint for sum of money with writ of preliminary attachments. In answer, respondent admitted that it purchased the units in the total amount of P1,240,000.00 and that it had only paid P400,000.00. It refused to pay the balance because Phil-Air allegedly breached its warranty. Further, RCJ Lines claimed that it was also entitled to be reimbursed for costs and damages occasioned by the enforcement of the writ of attachment. The RTC granted the application for the issuance of a writ of preliminary attachment after Phil-Air posted an attachment bond in the amount of P1,656,000.00. Two buses of RCJ Lines were attached pursuant to the writ dated December 18, 1998. The writ was executed on April 21, 1999. The attachment, however, was later lifted when the RTC granted RCJ Lines' urgent motion to discharge the writ of attachment. RCJ Lines posted a counter-bond in the same amount as the attachment bond. RTC and CA dismissed the petitioners complaint for lack of merit and directed the petitioners to pay P82,274.00 as refund of the premium for defendant's counter-bond. ISSUE: Whether or not the refund of the premium for defendant’s counter-bond for the release of the two buses is valid. RULING: The CA and the RTC erred when it held Phil-Air directly liable for the counter-bond premium and RCJ Lines' alleged unrealized profits. Granting that RCJ Lines suffered losses, the judgment award should have been first executed on the attachment bond. Only if the attachment bond is insufficient to cover the judgment award can Phil-Air be held liable. A writ of preliminary attachment is a provisional remedy issued by the court where an action is pending to be levied upon the property or properties of the defendant. The property is held by the sheriff as security for the satisfaction of whatever judgment that might be secured by the attaching party against the defendant. Section 4 of Rule 57 of the Rules of Civil Procedure (Rules) provides that "the party applying for the order must . . . give a bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ, conditioned that the latter will pay all the costs that may be adjudged to the adverse party and all damages that he may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto." As discussed above, it is patent that under the Rules, the attachment bond answers for all damages incurred by the party against whom the attachment was issued. Thus, Phil-Air cannot be held directly liable for the costs adjudged to and the damages sustained by RCJ Lines because of the attachment. Section 4 of Rule positively lays down the rule that the attachment bond will pay "all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto." The RTC, instead of declaring Phil-Air liable for the alleged unrealized profits and counter-bond premium, should have ordered the execution of the judgment award on the attachment bond. To impose direct liability to Phil-Air would defeat the purpose of the attachment bond, which was not dissolved despite the lifting of the writ of preliminary attachment. The order to refund the counter-bond premium is likewise erroneous. The premium payment may be deemed a cost incurred by RCJ Lines to lift the attachment. Such cost may be charged against the attachment bond. B. Preliminary Injunction Topic: Before an injunction can be issued, it is essential that the following requisites be present: 1) there must be a right in esse or the existence of a right to be protected; 2) the act against which the injunction is to be directed is a violation of such right. Idolor vs. CA G.R. No. 141853. February 7, 2001 Gonzaga-Reyes, J.; Division Facts On March 21, 1994, Teresita Idolor obtained a loan from Spouses De Guzman amounting to P520k secured by a real estate mortgage with right of extra-judicial upon failure to redeem the mortgage on or before September 20, 1994 over a Property with TCT located in Quezon City. On September 21, 1996, Sps. de Guzman filed a complaint against Idolor before the Office of the Barangay Captain which resulted in a "Kasunduang Pag-aayos" which provided for a 90 day extension and that “Failure to settle the above account on or before December 21, 1996, I agree to execute a deed of sale with the agreement to repurchase without interest within one year”, among others. Upon default, spouses instituted extra-judicial foreclosure proceedings against the real estate mortgage. During the auction sale (May 23, 1997), spouses emerged as the highest bidder and were issued a Certificate of Sale (registered June 23, 1997) On June 25, 1998, Idolor filed with RTC-QC a complaint for annulment of the Certificate of Sale with prayer for the issuance of a temporary restraining order and a writ of preliminary injunction alleging among others alleged irregularity and lack of notice in the extra-judicial foreclosure proceedings subject of the real estate mortgage. In the meantime, a TRO was issued by the RTC. The RTC issued a writ of preliminary injunction enjoining private respondents, the Deputy Sheriffs and the RD of QC from causing the issuance of a final deed of sale and consolidation of ownership of the subject property in favor of the De Guzman spouses. However, the CA in a petition for certiorari filed by respondent-spouses, annulled the same for having been issued with grave abuse of discretion. Issue WON injunction was properly issued by the RTC. Held No. Injunction is a preservative remedy aimed at protecting substantive rights and interests. Before an injunction can be issued, it is essential that the following requisites be present: 1) there must be a right in esse or the existence of a right to be protected; 2) the act against which the injunction is to be directed is a violation of such right. Injunction is not designed to protect contingent or future rights. Failure to establish either the existence of a clear and positive right which should be judicially protected through the writ of injunction or that the defendant has committed or has attempted to commit any act which has endangered or tends to endanger the existence of said right, is a sufficient ground for denying the injunction. In the instant case, the petitioner has no more proprietary right to speak of over the foreclosed property to entitle her to the issuance of a writ of injunction. It appears that the mortgaged property was sold in a public auction to private respondent Gumersindo on May 23, 1997 and the sheriff's certificate of sale was registered with the RD on June 23, 1997. Petitioner had one year from the registration of the sheriff's sale to redeem the property but she failed to exercise her right on or before June 23, 1998, thus spouses de Guzman are now entitled to a conveyance and possession of the foreclosed property. When petitioner filed her complaint for annulment of sheriff's sale against private respondents with prayer for the issuance of a writ of preliminary injunction on June 25, 1998, she failed to show sufficient interest or title in the property sought to be protected as her right of redemption had already expired on June 23, 1998, i.e. two (2) days before the filing of the complaint. It is always a ground for denying injunction that the party seeking it has insufficient title or interest to sustain it, and no claim to the ultimate relief sought — in other words, that she shows no equity. Topic: Preliminary Injunction – The onus probandi is on movant to show that there exists a right to be protected, which is directly threatened by the act sought to be enjoined. GUSTILO v REAL A.M. No. MTJ-00-1250 FEBRUARY 28, 2001 QUISUMBING, J. / DIVISION Facts Rimeo Gustilo (Gustilo) is a candidate for punong barangay of Barangay Punta Mesa, Manapla, Negros Occidental. His lone opponent was Weddy Libo-on (Libo-on). Both of them garnered 891 votes, resulting in a tie. The breaking of the tie by the Board of Canvassers was in favor of Gustilo so he was later proclaimed the punong barangay. Libo-on filed an election protest with the Municipal Circuit Trial Court, seeking to recount the votes with prayer for preliminary prohibitory injunction and damages. Libo-on filed a motion to advance the suit which Judge Ricardo Real Sr. (Real) granted, thereby adjusting the trial date from June 6 to May 28, 1997. Gustilo claims that he was not furnished a copy of the order adjusting the dates. On May 29, 1997, Judge Real issued a temporary restraining order and annulled Gustilo’s proclamation. Gustilo alleged that he never received a copy of the TRO from the court and only secured a copy of which from COMELEC and DILG. Further, he claims that he only received a copy of Libo-on’s petition for injunction in the afternoon. . On May 30, 1997, complainant took his oath of office as punong barangay. That same day, he also filed a petition for certiorari before the Regional Trial Court questioning the TRO. On June 5, 1997, the RTC lifted the TRO and declared the nullification of complainant’s proclamation void. In view of Judge Real’s issuance of the TRO, Gustilo believed that Judge Real could not decide Libo-on’s petition for injunction impartially and moved for his inhibition but it was denied. Judge Real heard Libo-on’s motion for permanent injunction, and issued a second TRO to maintain the status quo between the contending parties. Gustilo questions the second TOR on the ground that it effectively reverses the decision of the RTC and that it was issued to prevent him from participating in the election of the Liga ng Mga Barangay. Judge Real points out that both parties were present during the hearing for Libo-on’s petition after due notice. After receiving their evidence, he found that unless a TRO was issued, Libo-on would suffer a grave injustice and irreparable injury. Issue WON the issuance of the second TOR reverses the order of a higher court to lift earlier TRO thereby constituting gross misconduct Held Yes. Before an injunctive writ can be issued, it is essential that the following requisites be present: (1) there must be a right in esse or the existence of a right to be protected; and (2) the act against which injunction to be directed is a violation of such right. The onus probandi is on movant to show that there exists a right to be protected, which is directly threatened by the act sought to be enjoined. Further, there must be a showing that the invasion of the right is material and substantial and that there is an urgent and paramount necessity for the writ to prevent a serious damage. In this case, complainant had been duly proclaimed as the winning candidate for punong barangay. He had taken his oath of office. Unless his election was annulled, he was entitled to all the rights of said office. The Court does not see how the complainant’s exercise of such rights would cause an irreparable injury or violate the right of the losing candidate so as to justify the issuance of a temporary restraining order to maintain the status quo. The Court sees no reason to disagree with the finding of the OCA that the evident purpose of the second TRO was to prevent complainant from participating in the election of the Liga ng mga Barangay. /mimc Topic: The injunction bond is intended as a security for damages in case it is finally decided that the injunction ought not to have been granted. MICHAEL J. LAGROSAS, vs. BRISTOL-MYERS SQUIBB (PHIL.), INC./MEAD JOHNSON PHIL., RICHARD SMYTH as General Manager and FERDIE SARFATI, as Medical Sales Director G.R. No. 168637. September 12, 2008. QUISUMBING, J; Division FACTS: Michael J. Lagrosas was employed by Bristol-Myers Squibb (Phil.), Inc./Mead Johnson Phil. from January 6, 1997 until March 23, 2000 as Territory Manager in its Medical Sales Force Division. On February 4, 2000, Lagrosas approached Ma. Dulcinea S. Lim (ex-girlfriend), also a Territory Manager, and Cesar R. Menquito, Jr. Lagrosas hit Menquito with a metal steering wheel lock. When Lim tried to intervene, Lagrosas accidentally hit her head. Upon learning of the incident, Bristol-Myers required Lagrosas to explain in writing why he should not be dismissed for assaulting a co-employee outside of business hours. Bristol-Myers dismissed Lagrosas. Lagrosas then filed a complaint for illegal dismissal, non-payment of benefits. Labor Arbiter and NLRC declared the dismissal illegal. Later, Labor Arbiter Hernandez issued a writ of execution. Bristol-Myers moved to quash the writ of execution contending that it timely filed a petition for certiorari with the Court of Appeals. The CA gave due course to petition and issued a TRO enjoining the enforcement of the writ of execution and notices of garnishment. Upon the expiration of the TRO, the CA issued a writ of preliminary injunction. The CA in its decision considered the misconduct as having been committed in connection with Lagrosas' duty as Territory Manager since it occurred immediately after the district meeting of territory managers. In the meantime, Bristol-Myers moved to release the TRO cash bond and injunction cash bond in view of the CA’s decision. The CA held that upon the expiration of the TRO, the cash bond intended for it also expired. Thus, the discharge and release of the cash bond for the expired TRO is proper. But the appellate court disallowed the discharge of the injunction cash bond since the writ of preliminary injunction was issued pendente lite. Since there is a pending appeal with the Supreme Court. ISSUE: Whether or not the Court of Appeals erred in disallowing the discharge and release of the injunction cash bond. RULING: The SC held that the appellate court erred in disallowing the discharge and release of the injunction cash bond. It is settled that the purpose of a preliminary injunction is to prevent threatened or continuous irremediable injury to some of the parties before their claims can be thoroughly studied and adjudicated. Its sole aim is to preserve the status quo until the merits of the case can be heard fully. The injunction bond is intended as a security for damages in case it is finally decided that the injunction ought not to have been granted. Its principal purpose is to protect the enjoined party against loss or damage by reason of the injunction, and the bond is usually conditioned accordingly. In this case, the CA issued the writ of preliminary injunction to enjoin the implementation of the writ of execution and notices of garnishment "pending final resolution of this case or unless the writ is sooner lifted by the Court". By its Decision the CA disposed of the case by granting Bristol-Myers' petition and dismissed the complaint for dismissal. It also ordered the discharge of the TRO cash bond and injunction cash bond. Thus, both conditions of the writ of preliminary injunction were satisfied. Topic: Injunction is the strong arm of equity. Petitioners must come to court with clean hands. Jesona vs. Delariarte G.R. No. 172138. September 8, 2010 Carpio, J; Division Facts On 22 November 2002, some students of University of San Augustin (petitioners) were caught engaging in hazing outside the school premises. Thereafter, dialogues and consultations were conducted among the school authorities, the apprehended students and their parents. During the 28 November 2002 meeting, the parties agreed that, instead of the possibility of being charged and found guilty of hazing, the students who participated in the hazing incident as initiators, including petitioner students, would just transfer to another school, while those who participated as neophytes would be suspended for one month. The parents of the apprehended students, including petitioners, affixed their signatures to the minutes of the meeting to signify their conformity. In view of the agreement, the University did not anymore convene the Committee on Student Discipline (COSD) to investigate the hazing incident. On 5 December 2002, the parents sent a letter to the University President urging him not to implement the 28 November 2002 agreement. According to petitioner parents, the Principal, without convening the COSD, decided to order the immediate transfer of petitioner students. On 10 December 2002, petitioner parents also wrote a letter to DepEd seeking her intervention. The DepEd asked the University to comment on the letter. The University replied and attached the minutes of the 28 November 2002 meeting. Petitioners filed a complaint for injunction and damages with the RTC. The RTC issued the writ of preliminary injunction The CA then ordered the RTC to dismiss the cases for lack of jurisdiction over the subject matter because of petitioners' failure to exhaust administrative remedies or for being premature. petitioners should have waited for the action of the DepEd or of the University President before resorting to judicial action. Issue WON the injunction should be issued. Held No. The petitioners reneged on their agreement without any justifiable reason. Since petitioners' present complaint is one for injunction, and injunction is the strong arm of equity, petitioners must come to court with clean hands. This is so because among the maxims of equity are (1) he who seeks equity must do equity, and (2) he who comes into equity must come with clean hands. The latter is a frequently stated maxim which is also expressed in the principle that he who has done inequity shall not have equity. It signifies that a litigant may be denied relief by a court of equity on the ground that his conduct has been inequitable, unfair and dishonest, or fraudulent, or deceitful as to the controversy in issue. This Court may deny a litigant relief if his conduct has been inequitable, unfair and dishonest as to the controversy in issue. Since petitioners have come to court with inequitable and unfair conduct, we deny them relief. We uphold the validity of the 28 November 2002 agreement and rule that the Principal had the authority to order the immediate transfer of petitioner students based on the 28 November 2002 agreement. Topic: Preliminary Injunction – Preliminary injunction is an extraordinary event which must be granted only in the face of actual and existing substantial rights. SOLID BUILDERS INC. v CHINA BANKING CORPORATION G.R. NO. 179665 APRIL 3, 2013 LEONARDO-DE CASTRO, J. / DIVISION Facts China Banking Corporation (CBC) granted several loans to Solid Builders, Inc. (SBI), which amounted to P139,999,234.34, exclusive of interests and other charges. To secure the loans, Medina Foods Industries, Inc. (MFII) executed in CBC’s favor several surety agreements and contracts of real estate mortgage over parcels of land in Quezon City and New Cubao Central, Rizal. The final amount of the loan was later assessed to be P218,540,648.00. In a letter addressed to CBC, SBI requested the restructuring of its loans, a reduction of interests and penalties and the implementation of a dacion en pago of the New Cubao Central property. CBC denied the requests and replied that P218,540,648.00 was already the restructured amount. Subsequently, in another letter, CBC demanded SBI to settle its outstanding accounts within ten days from receipt of the letter or else it shall subject the matter to legal action. SBI and MFII filed a complaint "To Compel Execution of Contract and for Performance and Damages, With Prayer for Writ of Preliminary Injunction and Ex-Parte Temporary Restraining Order" in the Regional Trial Court, claiming that the interests, penalties and charges imposed by CBC were iniquitous and unconscionable and seeking to enjoin CBC from initiating foreclosure proceedings. The RTC granted the writ of preliminary injunction after hearing both parties. According to the RTC, SBI’s and MFII’s properties and source of income will be effectively diminished, possibly to the point of closure, if all the parcels of land mortgaged in view of the loan will be subject to foreclosure proceedings. CBC filed a motion for reconsideration and motion to dissolve the injuctive order, both of which were denied. It then filed a petition for certiorari with the Court of Appeals, which was granted on the ground that the records do not reveal a clear and unmistakable right on the part of SBI and MFII that would entitle them to the protection of a writ of preliminary injunction. The writ was consequently dissolved. Issue WON debtors are entitled to the protection of the writ considering their outstanding indebtedness Held No. A writ of preliminary injunction is a preservative remedy to ensure the protection of a party’s substantive rights or interests pending the final judgment in the principal action. A plea for an injunctive writ lies upon the existence of a claimed emergency or extraordinary situation which should be avoided for otherwise, the outcome of a litigation would be useless as far as the party applying for the writ is concerned. It is an extraordinary event which must be granted only in the face of actual and existing substantial rights. As debtor-mortgagors, SBI and MFII do not have a right to prevent the creditor-mortgagee CBC from foreclosing on the mortgaged properties simply on the basis of alleged "usurious, exorbitant and confiscatory rate of interest." First, assuming that the interest rate agreed upon by the parties is usurious, the nullity of the stipulation of usurious interest does not affect the lender’s right to recover the principal loan, nor affect the other terms thereof. Thus, in a usurious loan with mortgage, the right to foreclose the mortgage subsists, and this right can be exercised by the creditor upon failure by the debtor to pay the debt due. Second, the basis of the right claimed by SBI and MFII remains to be controversial or disputable as there is still a need to determine whether or not, upon consideration of the various circumstances surrounding the agreement of the parties, the interest rates and penalty charges are unconscionable. Therefore, such claimed right cannot be considered clear, actual and subsisting. In the absence of a clear legal right, the issuance of the injunctive writ constitutes grave abuse of discretion. /mimc Topic: A writ of preliminary injunction may be issued only upon clear showing of an actual existing right to be protected SPOUSES SILVESTRE O. PLAZA AND ELENA Y. PLAZA vs. GUILLERMO LUSTIVA, ELEODORA VDA. DE MARTINEZ AND VICKY SAMSON GOLOSENO G.R. No. 172909. March 5, 2014. BRION, J; Division FACTS: On August 28, 1997, the CA ruled that among the Plaza siblings, namely: Aureliano, Emiliana, Vidal, Marciano, and Barbara, Barbara was the owner of the subject agricultural land. The decision became final and executory and Barbara's successors, the respondents have continued to occupy the property. On September 14, 1999, Vidal's son and daughter-in-law, the petitioners, filed a Complaint for Injunction, Damages, Attorney's Fees with Prayer for the Issuance of the Writ of Preliminary Injunction and/or TRO against the respondents and the City Government of Butuan. They prayed that the respondents be enjoined from unlawfully and illegally threatening to take possession of the subject property. According to the petitioners, they acquired the land from Virginia Tuazon in 1997; Tuazon was the sole bidder and winner in a tax delinquency sale conducted by the City of Butuan on December 27, 1996. The respondents pointed out that they were never delinquent in paying the land taxes and were in fact not aware that their property had been offered for public auction. Moreover, Tuazon, being a government employee, was disqualified to bid in the public auction, as stated in Section 89 of the LGC. As Tuazon's participation in the sale was void, she could have not transferred ownership to the petitioners. For these irregularities, the petitioners had no right to the Writ of Preliminary Injunction and/or TRO prayed for against them. The RTC reconsidered its earlier order, denied the prayer for a Writ of Preliminary Injunction, and ordered that the possession and occupation of the land be returned to the respondents. Under Rule 65, the petitioners challenged the RTC's order before the CA. The CA affirmed the RTC's ruling. The petitioners filed the present petition for review on certiorari with this Court to challenge the CA rulings. Meanwhile, on August 8, 2013, the RTC dismissed the main action and ordered the petitioners to pay the respondent’s attorney's fees and litigation expenses. ISSUE: Whether or not the writ of preliminary injunction may issue. HELD: The petitioners failed to show clear and unmistakable rights to be protected by the writ; the present action has been rendered moot and academic by the dismissal of the main action. As the lower courts correctly found, Tuazon had no ownership to confer to the petitioners despite the latter's reimbursement of Tuazon's purchase expenses. Because they were never owners of the property, the petitioners failed to establish entitlement to the writ of preliminary injunction. "[T]o be entitled to an injunctive writ, the right to be protected and the violation against that right must be shown. A writ of preliminary injunction may be issued only upon clear showing of an actual existing right to be protected during the pendency of the principal action. When the complainant's right or title is doubtful or disputed, he does not have a clear legal right and, therefore, the issuance of injunctive relief is not proper." Likewise, upon the dismissal of the main case by the RTC on August 8, 2013, the question of issuance of the writ of preliminary injunction has become moot and academic. In Arevalo v. Planters Development Bank, the Court ruled that a case becomes moot and academic when there is no more issue between the parties or object that can be served in deciding the merits of the case. Upon the dismissal of the main action, the question of the non-issuance of a writ of preliminary injunction automatically died with it. A writ of preliminary injunction is a provisional remedy; it is auxiliary, an adjunct of, and subject to the determination of the main action. It is deemed lifted upon the dismissal of the main case, any appeal therefrom notwithstanding. Topic: The decision of the Ombudsman is immediately executory pending appeal and may not be stayed by the filing of an appeal or the issuance of an injunctive writ. Office of the Ombudsman vs. De Chavez G.R. No. 172206. July 3, 2013 Peralta, J.; Division Facts On August 18, 2005, the Batangas State University Board of Regents (BSU-BOR) received an Order from Deputy Ombudsman Fernandez directing the former to enforce the Office of the Ombudsman's Joint Decision and Supplemental Resolution finding respondents guilty of dishonesty and grave misconduct and imposing the penalty of dismissal from service with its accessory penalties Pursuant to said Order, the BSU-BOR issued Resolution No. 18, series of 2005, dated August 22, 2005, resolving to implement the Order of the Office of the Ombudsman. Respondents filed a petition for injunction with prayer for issuance of a TRO or preliminary injunction before the RTC stating that the BSU-BOR should be enjoined from enforcing the Resolution because the same are still on appeal and, therefore, are not yet final and executory. On September 26, 2005, the RTC ordered the dismissal of herein respondents' petition for injunction on the ground of lack of cause of action. Respondents filed their notice of appeal and promptly filed a Motion for Issuance of a TRO and/or Injunction dated December 8, 2005 with the CA. On February 17, 2006, the CA issued a Resolution granting respondents' prayer for a TRO enjoining the BSU-BOR from enforcing its Resolution No. 18, series of 2005. Issue WON the BSU-BOR could validly enforce the Ombudsman's Decision despite the fact that said Joint Decision and Supplemental Resolution are pending appeal before the CA. Held Yes. Note that for a writ of preliminary injunction to issue, the following essential requisites must concur, to wit: (1) that the invasion of the right is material and substantial; (2) that the right of complainant is clear and unmistakable; and, (3) that there is an urgent and paramount necessity for the writ to prevent serious damage. In the present case, the right of respondents cannot be said to be clear and unmistakable, because the prevailing jurisprudence is that the penalty of dismissal from the service meted on government employees or officials is immediately executory in accordance with the valid rule of execution pending appeal uniformly observed in administrative disciplinary cases. The decision of the Ombudsman is immediately executory pending appeal and may not be stayed by the filing of an appeal or the issuance of an injunctive writ. Topic: Preliminary Injunction – The plaintiff is not required to submit conclusive and complete evidence; only showing of an ostensible right to the final relief prayed for in his complaint. NOVECIO v LIM G.R. NO. 193809 MARCH 23, 2015 BRION, J. / DIVISION Facts Maria Carmen Tuazon (Tuazon) and Manuel Nieto (Nieto) filed complaints for forcible entry with damages against Saturnino Novecio, Gavino Novecio, Anastacio Golez, et al. (Novecio et al), claiming that the latter unlawfully squatted and took possession of several portions of their land. Novecio et al allegedly planted crops, erected makeshift shelters, and continue to plant and /or improve the shelters as of the filing of the complaints for forcible entry, all without the consent and/or against their will. Novecio et al, on the other hand, contended that they have already been in possession of the land for more than two years when the complaints were filed. They maintained that they have planted the land with crops for their livelihood. They also alleged that they were harassed by some men armed with shotguns and pistols at one time. Further, they maintained that Nieto had previous landholding in the area but the same was covered by the Comprehensive Agrarian Reform Program (CARP) and so it was subdivided in favor of the tenants. The MTC resolved the forcible entry case in favor of Novecio et al but the RTC, upon Tuazon and Nieto’s appeal, reversed the decision of the lower court. Novecio at al then filed a Petition for Review with the Court of Appeals and filed an Extremely Urgent Application for Writ of Preliminary Injunction and Immediate Issuance of Temporary Restraining Order against the execution of RTC’s order for ejectment. TRO was issued for 60 days but the CA, without necessarily resolving the petition on the merits, held that the Novecio et al were not entitled to the relief for preliminary injunction. When their motion for reconsideration was denied, Novecio et al imputed grave abuse of discretion on the CA in denying their prayer for injunction pending resolution of the Petition for Review. They argued that there was pressing need for the CA to prevent grave and irreparable injury to them considering that they have been in possession of the lot for years and that the same has been their home as well as source of livelihood. Issue WON denial of writ of preliminary injunction due to applicant’s failure to establish legal right was improper thereby constituting grave abuse of discretion Held Yes. A review of the records shows that the CA ignored relevant facts that would have justified the issuance of a preliminary injunction. A preliminary injunction is proper when the plaintiff appears to be clearly entitled to the relief sought and has substantial interest in the right sought to be defended. As this Court has previously ruled, "while the existence of the right need not be conclusively established, it must be clear." A writ of preliminary injunction is generally based solely on initial or incomplete evidence. Such evidence need only be a sampling intended merely to give the court an evidence of justification for a preliminary injunction pending the decision on the merits of the case, and is not conclusive of the principal action which has yet to be decided. In a prayer for preliminary injunction, the plaintiff is not required to submit conclusive and complete evidence. He is only required to show that he has an ostensible right to the final relief prayed for in his complaint. In this case, the petitioners have adequately shown their entitlement to a preliminary injunction. First, the relief demanded consists in restraining the execution of the RTC decision ordering their ejectment from the disputed land. Second, their ejectment from the land from which they derive their source of livelihood would work injustice to the petitioners. /mimc Topic: A right to be protected by injunction, means a right clearly founded on or granted by law or is enforceable as a matter of law. LIBERTY BROADCASTING NETWORK, INC., (now: WI-TRIBE TELECOMS, INC.) vs. ATLOCOMWIRELESS SYSTEM, INC. G.R. No. 205875. June 30, 2015. VILLARAMA, JR., J; En Banc FACTS: Atlocom is a grantee of a legislative franchise under Republic Act (R.A.) No. 8605. 4 On October 8, 2003, the NTC issued an Order in NTC Case No. 98-158 relative to the application of Atlocom for a Certificate of Public Convenience (CPC). The provisional authority (PA) shall be valid for a period of 18 months, or until April 8, 2005. Atlocom requested for extension of time of the allocation of frequencies on April 5, 2004, June 2, 2005, and March 3, 2005. On August 23, 2005, NTC issued Memorandum Circular No. (MC) 06-08-2005 11 re-allocating the bands. On December 23, 2008, NTC denied Atlocom's motion for extension of PA, citing the re-allocation of MMDS frequencies for Broadband Wireless Access in accordance with MC 06-08-2005 and the unavailability of other alternative frequencies. On September 8, 2009, Atlocom filed in the RTC a Petition 13 to enjoin the implementation of MC 0608-2005 and reinstate the frequencies of Atlocom. On December 9, 2010, the RTC, after due hearing, issued an Order denying Atlocom's application for a writ of preliminary prohibitory or mandatory injunction. In a petition for certiorari filed before the CA, Atlocom questioned the validity of the aforesaid orders of the RTC. The CA ruled in favor of Atlocom and reversed the RTC's denial of application for preliminary injunction. ISSUE: Whether or not Atlocom complied with the requisites for issuance of a writ of preliminary injunction. RULING: SC held that the CA gravely abused its discretion when it issued a writ of preliminary injunction against the implementation of MC 06-08-2005 in the absence of a clear legal right on the part of Atlocom. A preliminary injunction is defined as "[a]n order granted at any stage of an action prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts." It may be a prohibitory injunction, which requires a party to refrain from doing a particular act, or a mandatory injunction, which commands a party to perform a positive act to correct a wrong in the past. It is a provisional remedy that a party may resort to in order to preserve and protect certain rights and interests during the pendency of an action. The following requisites must be proved before a writ of preliminary injunction will issue: (1) The applicant must have a clear and unmistakable right to be protected, that is, a right in esse; (2) There is a material and substantial invasion of such right; (3) There is an urgent need for the writ to prevent irreparable injury to the applicant; and (4) No other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury. A right to be protected by injunction, means a right clearly founded on or granted by law or is enforceable as a matter of law. An injunction is not a remedy to protect or enforce contingent, abstract, or future rights; it will not issue to protect a right not in esse, and which may never arise, or to restrain an act which does not give From the evidence on record, no clear, actual and existing right to the subject frequencies or to the extension of PA had been shown by Atlocom. Accordingly, no grave abuse of discretion was committed by the RTC in denying Atlocom's application for a writ of preliminary injunction to restrain the implementation of MC 06-08-2005 insofar as the use of the reallocated frequencies claimed by Atlocom. The CA thus seriously erred in reversing the RTC and holding that Atlocom was entitled to injunctive relief due to alleged violation of its right by the NTC. Topic: An inalienable public land cannot be appropriated. Hence, injunction cannot be issued in order to protect one's alleged right of possession over the same. Republic vs. Cortez, Sr. G.R. No. 197472. September 7, 2015 Del Castillo, J.; Division Facts Rev. Claudio R. Cortez, Sr., a missionary, established an orphanage and school in Punta Verde, Palaui Island, San Vicente, Sta. Ana, Cagayan. He claimed that since 1962, he has been in peaceful possession of about 50 hectares of land which he, with the help of Aetas and other people under his care, cleared and developed for agricultural purposes in order to support his charitable, humanitarian and missionary works. On May 22, 1967, President Marcos issued Proc. 201 reserving for military purposes a parcel of the public domain situated in Palaui Island. Pursuant thereto, 2,000 hectares of the southern half portion of the Palaui Island were withdrawn from sale or settlement and reserved for the use of the Philippine Navy, subject, however, to private rights if there be any. On August 16, 1994, President Ramos issued Proc. 447 declaring Palaui Island and the surrounding waters situated in the Municipality of Sta. Ana, Cagayan as marine reserve. Again subject to any private rights, the entire Palaui Island consisting of an aggregate area of 7,415.48 hectares was accordingly reserved as a marine protected area. On June 13, 2000, Rev. Cortez filed a Petition for Injunction with Prayer for the Issuance of a Writ of Preliminary Mandatory Injunction against Rogelio C. Biñas in his capacity as Commanding Officer of the Philippine Naval Command in Port San Vicente, Sta. Ana, Cagayan. According to him, some members of the Philippine Navy, upon orders of Biñas, disturbed his peaceful and lawful possession of the said 50-hectare portion of Palaui Island. RTC issued an Order dated February 21, 2002 granting the application for a writ of preliminary mandatory injunction. However, the same pertained to five hectares (subject area) only, not to the whole 50 hectares claimed to have been occupied by Rev. Cortez. On July 3, 2007, the RTC rendered its Decision making the injunction final and permanent. In so ruling, the said court made reference to the Indigenous Peoples’ Rights Act. Issue WON Rev. Cortez is entitled to a final writ of mandatory injunction. Held No. Two requisites must concur for injunction to issue: (1) there must be a right to be protected and (2) the acts against which the injunction is to be directed are violative of said right The Court finds that Rev. Cortex failed to conclusively establish his claimed right over the subject portion of Palaui Island as would entitle him to the issuance of a final injunction. The Court notes that while Rev. Cortez relies heavily on his asserted right of possession, he, nevertheless, failed to show that the subject area over which he has a claim is not part of the public domain and therefore can be the proper object of possession. In this case, there is no such proof showing that the subject portion of Palaui Island has been declared alienable and disposable when Rev. Cortez started to occupy the same. Hence, it must be considered as still inalienable public domain. Being such, it cannot be appropriated and therefore not a proper subject of possession. C. Receivership Topic: Receivership – Foreclosure is not prohibited when a bank is under receivership and liquidation. SPS. LARROBIS v PHILIPPINE VETERANS BANK G.R. NO. 135706 OCTOBER 1, 2004 AUSTRIA-MARTINEZ, J. / DIVISION Facts On March 3, 1980, Spouses Cesar and Virginia Larrobis (Sps. Larrobis) contracted a monetary loan due and demandable on February 27, 1981 with Philippine Veterans Bank (the Bank) and executed a Real Estate Mortgage on their lot together with the improvements thereon. On March 23, 1985, the Bank was placed under receivership and liquidation by the Central Bank due to bankruptcy. On August 3, 1985, the Bank through authorized deputy Francis Go sent a demand letter to Sps. Larrobis for accounts receivable over insurance premiums advanced by the Bank over the mortgaged property. On August 23, 1995 – more than fourteen years from the loan’s due date – the Bank filed a petition with the Regional Trial Court for extrajudicial foreclosure of mortgage of the property which was sold in a public auction with the Bank as the lone bidder. On April 17, 1988, Sps. Larrobis filed a complaint with the RTC to declare the foreclosure and sale null and void on the ground that the Bank’s right to foreclose the mortgage had already lapsed. In its answer, the Bank relied on the Provident case ruling which holds that the period during which the bank was placed under receivership was deemed fuerza mayor which validly interrupted the prescriptive period. The RTC ruled in favor of the Bank. The RTC emphasized that a written extrajudicial demand wipes out the period that had already elapsed and starts anew the prescriptive period. It recognized the extrajudicial demand made by Francis Go as the start of the new ten-year period. Sps. Larrobis filed a motion for reconsideration but the same was denied, hence they filed a Petition for Review directly to the Supreme Court. They maintained that the Bank’s right to foreclose had prescribed already and contended that the demand letter sent in 1985 referred to another obligation. Issue WON placement under receivership/liquidation was a fortuitous event that interrupted the ten-year prescriptive period to initiate foreclosure proceedings Held No. While it is true that foreclosure falls within the broad definition of doing business, it should not be considered included in the acts prohibited whenever banks are prohibited from doing business during receivership and liquidation. When a bank is declared insolvent and placed under receivership, the Central Bank, through the Monetary Board, determines whether to proceed with the liquidation or reorganization of the financially distressed bank. A receiver, who concurrently represents the bank, then takes control and possession of its assets for the benefit of the bank’s creditors. A liquidator meanwhile assumes the role of the receiver upon determination by the Monetary Board that the bank can no longer resume business. A receiver of the bank is in fact obliged to collect debts owing to the bank, which debts form part of the assets of the bank. The receiver must assemble the assets and pay the obligation of the bank under receivership and take steps to prevent dissipation of such assets. Accordingly, the receiver of the bank is obliged to collect pre-existing debts due to the bank and in connection therewith to foreclose mortgages securing debts. Previous ruling in the Provident case does not find application in the case at bar. Unlike Provident Savings Bank, there was no legal prohibition imposed upon herein respondent to deter its receiver and liquidator from performing their obligations under the law. Hence, the period within which respondent bank was placed under receivership/liquidation proceedings does not constitute a fortuitous event. /mimc Topic: Ground for issuance of Receivership MILA CABOVERDE TANTANO and ROSELLER CABOVERDE, vs. DOMINALDA ESPINACABOVERDE, EVE CABOVERDE-YU, FE CABOVERDE-LABRADOR, and JOSEPHINE E. CABOVERDE, G.R. No. 203585. July 29, 2013 VELASCO, JR., J; Division FACTS: Petitioners Mila Caboverde Tantano (Mila) and Roseller Caboverde (Roseller) are children of respondent Dominalda Espina-Caboverde (Dominalda) and siblings of other respondents in this case, namely: Eve Caboverde-Yu (Eve), Fe Caboverde-Labrador (Fe), and Josephine E. Caboverde (Josephine). Petitioners and their siblings, Ferdinand, Jeanny and Laluna, are the registered owners and in possession of certain parcels of land, identified as Lots 2, 3 and 4 having purchased them from their parents, Maximo and Dominalda. Respondents Eve and Fe filed a complaint before the RTC for the annulment of the Deed of Sale purportedly transferring Lots 2, 3 and 4 from their parents in favor of petitioners Mila and Roseller and their other siblings, Jeanny, Laluna and Ferdinand. Fearing that the contested properties would be squandered, Dominalda filed a Verified Urgent Petition/Application to place the controverted Lots 2, 3 and 4 under receivership. Mainly, she claimed that while she had a legal interest in the controverted properties and their produce, she could not enjoy them, since the income derived was solely appropriated by petitioner Mila in connivance with her selected kin. She alleged that she immediately needs her legal share in the income of these properties for her daily sustenance and medical expenses. Also, she insisted that unless a receiver is appointed by the court, the income or produce from these properties is in grave danger of being totally dissipated, lost and entirely spent solely by Mila and some of her selected kin. The trial court issued a Resolution granting Dominalda's application for receivership over Lot Nos. 2, 3 and 4. Petitioners thereafter moved for reconsideration raising the arguments that the concerns raised by Dominalda in her Application for Receivership are not grounds for placing the properties in the hands of a receiver and that she failed to prove her claim that the income she has been receiving is insufficient to support her medication and medical needs. The trial court denied the motion for reconsideration. The CA likewise denied the petition for certiorari. ISSUE: 1. Whether or not the CA committed grave abuse of discretion in sustaining the appointment of a receiver despite clear showing that the reasons advanced by the applicant are not any of those enumerated by the rules. 2. Whether or not the CA committed grave abuse of discretion in upholding the Resolution of the RTC and ruling that the receivership bond is not required prior to appointment despite clear dictates of the rules. HELD: Receivership is a harsh remedy to be granted with utmost circumspection and only in extreme situations. Before appointing a receiver, courts should consider: (1) whether or not the injury resulting from such appointment would probably be greater than the injury ensuing if the status quo is left undisturbed; and (2) whether or not the appointment will imperil the interest of others whose rights deserve as much a consideration from the court as those of the person requesting for receivership. 1. The SC finds that the grant of Dominalda's Application for Receivership has no leg to stand on. Dominalda's alleged need for income to defray her medical expenses and support is not a valid justification for the appointment of a receiver because financial need and like reasons are not found in Sec. 1 of Rule 59 which prescribes specific grounds or reasons for granting receivership. There is no clear showing that the disputed properties are in danger of being lost or materially impaired and that placing them under receivership is most convenient and feasible means to preserve, administer or dispose of them. Placing the disputed properties under receivership is not necessary to save Dominalda from grave and immediate loss or irremediable damage. Finally, it must be noted that the defendants in Civil Case No. S-760 are the registered owners of the disputed properties that were in their possession. In cases such as this, it is settled jurisprudence that the appointment should be made only in extreme cases and on a clear showing of necessity in order to save the plaintiff from grave and irremediable loss or damage. 2. Sec. 2 of Rule 59 is very clear in that before issuing the order appointing a receiver the court shall require the applicant to file a bond executed to the party against whom the application is presented. The use of the word "shall" denotes its mandatory nature; thus, the consent of the other party, or as in this case, the consent of petitioners, is of no moment. Hence, the filing of an applicant's bond is required at all times. Topic: The Monetary Board that exercises exclusive jurisdiction over proceedings for receivership of banks. Koruga vs. Arcenas G.R. No. 168332. June 19, 2009 Nachura, J.; Division Facts Koruga is a minority stockholder of Banco Filipino Savings and Mortgage Bank. On August 20, 2003, she filed a complaint before the Makati RTC for violation of the Corporation Code (i.e., self-dealing and conflicts of interest of directors and officers; right of inspection; & receivership) Issue WON the RTC has jurisdiction over the Koruga Complaint. Held No. It is the BSP that has jurisdiction over the case. Koruga's Complaint charged defendants with violation of Sections 31 to 34 of the Corporation Code, prohibiting self-dealing and conflict of interest of directors and officers; invoked her right to inspect the corporation's records under Sections 74 and 75 of the Corporation Code; and prayed for Receivership and Creation of a Management Committee, pursuant to Rule 59 of the Rules of Civil Procedure, the Securities Regulation Code, the Interim Rules of Procedure Governing Intra-Corporate Controversies, the General Banking Law of 2000, and the New Central Bank Act. She accused the directors and officers of Banco Filipino of engaging in unsafe, unsound, and fraudulent banking practices, more particularly, acts that violate the prohibition on self-dealing. Koruga's invocation of the provisions of the Corporation Code is misplaced. In an earlier case, we ruled that: “The Corporation Code, however, is a general law applying to all types of corporations, while the New Central Bank Act regulates specifically banks and other financial institutions, including the dissolution and liquidation thereof. As between a general and special law, the latter shall prevail. Consequently, it is not the Interim Rules of Procedure on Intra-Corporate Controversies, or Rule 59 of the Rules of Civil Procedure on Receivership, that would apply to this case. Instead, Sections 29 and 30 of the New Central Bank Act should be followed. It is the Monetary Board that exercises exclusive jurisdiction over proceedings for receivership of banks. Crystal clear in Section 30 is the provision that says the "appointment of a receiver under this section shall be vested exclusively with the Monetary Board." The term "exclusively" connotes that only the Monetary Board can resolve the issue of whether a bank is to be placed under receivership and, upon an affirmative finding, it also has authority to appoint a receiver. This is further affirmed by the fact that the law allows the Monetary Board to take action "summarily and without need for prior hearing." Topic: Receivership – If the action does not require protection or preservation, the remedy is not receivership. CHAVEZ v CA G.R. NO. 174356 JANUARY 20, 2010 ABAD, J. / DIVISION Facts Fidela Vargas (Vargas) owned a five-hectare mixed coconut land and rice fields in Sorsogon. Evelina Chavez (Chavez) had been staying in a remote portion of said land with her family, planting coconut seedlings and supervising the harvest of coconut and palay. Vargas and Chavez agreed to divide the gross sales of all products from the land between themselves. Since Vargas was busy with law practice, Chavez undertook to hold in trust for Vargas half the profits. However, Vargas claimed that Chavez had failed to remit her share of the profits and had refused to turn over administration of the property to her despite her demands. Vargas then filed a complaint against Chavez and her daughter Aida Deles (Deles), who was assisting her mother, for recovery of possession, rent, and damages with prayer for immediate appointment of a receiver before the Regional Trial Court. Chavez and Deles claimed that the RTC did not have jurisdiction over the subject matter since it involved an agrarian dispute. The RTC dismissed the complaint for lack of jurisdiction based on admission of Chavez and Deles that they were agricultural tenants. It ruled that the jurisdiction over the case belonged to the Department of Agrarian Reform Adjudication Board (DARAB). Dissatisfied, Vargas appealed to the Court of Appeals and filed with the same a motion for the appointment of a receiver. The CA granted the motion and ordained receivership of the land, noting that there appeared to be a need to preserve the property and its fruits in light of Vargas’ claim that Chavez and Deles failed to account for her share. Issue WON failure to account for one’s share to the fruits of a property constitutes sufficient ground for grant of the motion for the appointment of receiver Held No. A petition for receivership under Section 1 (b), Rule 59 of the Rules of Civil Procedure requires that the property or fund subject of the action is in danger of being lost, removed, or materially injured, necessitating its protection or preservation. Its object is the prevention of imminent danger to the property. If the action does not require such protection or preservation, the remedy is not receivership. Here, Vargas’ main gripe is that Chavez and Deles deprived her of her share of the land’s produce. She does not claim that the land or its productive capacity would disappear or be wasted if not entrusted to a receiver. Nor does Vargas claim that the land has been materially injured, necessitating its protection and preservation. Because receivership is a harsh remedy that can be granted only in extreme situations, Vargas must prove a clear right to its issuance. But she has not. Indeed, in none of the other cases she filed against Chavez and Deles has that remedy been granted her. Besides, the RTC dismissed Vargas' action for lack of jurisdiction over the case, holding that the issues it raised properly belong to the DARAB. The case before the CA is but an offshoot of that RTC case. Given that the RTC has found that it had no jurisdiction over the case, it would seem more prudent for the CA to first provisionally determine that the RTC had jurisdiction before granting receivership which is but an incident of the main action. /mimc D. Replevin Topic: Damages covered by the Replevin bond. JOSE S. OROSA and MARTHA P. OROSA vs. HON. COURT OF APPEALS and FCP CREDIT CORPORATION, G.R. No. 111080. April 5, 2000 YNARES-SANTIAGO, J; Division FACTS: Petitioner Jose bought a Ford Laser Sedan from Fiesta Motor Sales Corporation on installment basis secured by a promissory note and a chattel mortgage. These were assigned to respondent credit corporation which sued petitioner when he defaulted in its payment. The subject car being used by his daughter, was thereby repossessed. Petitioner claimed to have suffered anguish and unquantifiable humiliation as a consequence thereof. The trial court rendered judgment dismissing the complaint and ordering respondent to pay petitioner moral and exemplary damages and attorney's fees. A supplemental decision was rendered ordering the surety to jointly and severally, with respondent, to return the car or its equivalent to petitioner. The surety filed a petition for certiorari challenging the supplemental decision while respondent appealed the original decision of the trial court. The petition was dismissed while the appeal was partially affirmed deleting the award of damages and attorney's fees but ordering respondent to return the car to petitioner and pay him the amount of the 14 installments paid. Aggrieved, petitioner filed the instant recourse challenging the jurisdiction of the Court of Appeals, raising res judicata and lack of prior notice and demand, which was not raised in the complaint. ISSUE: Whether or not CA erred in holding FCP not liable for actual damages under the replevin bond it filed HELD: The Supreme Court denied the claim. The law clearly states that one may only recover moral damages if they are the proximate result of the other party's wrongful act or omission. Two elements are required. First, the act or omission must be the proximate result of the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury. Second, the act must be wrongful. Petitioner maintains that embarrassment resulted when he had to explain the suit to his daughter's inlaws. However, that could have been avoided had he not assigned the car to his daughter and had he been faithful and prompt in paying the installments required. SC agreed with the CA that when private respondent brought the complaint, it did so only to exercise a legal right, believing that it had a meritorious cause of action clearly borne out by a mere perusal of the promissory note and chattel mortgage. To constitute malicious prosecution, there must be proof that the prosecution was prompted by a sinister design to vex and humiliate a person, and that it was initiated deliberately, knowing that the charges were false and groundless. Such was not the case when the instant complaint was filed. The rule has always been that moral damages cannot be recovered from a person who has filed a complaint against another in good faith. The law always presumes good faith such that any person who seeks to be awarded damages due to acts of another has the burden of proving that the latter acted in bad faith or with ill motive. Topic: The labor dispute is not intertwined with the issue in the Replevin Case. The respective issues raised in each forum can be resolved independently on the other. Smart Communications, Inc. vs. Astorga G.R. No. 148132. January 28, 2008 Nachura, J.; Division Facts Regina M. Astorga (Astorga) was employed by SMART on May 8, 1997 as District Sales Manager of the Corporate Sales Marketing Group/Fixed Services Division (CSMG/FSD). She was receiving a monthly salary of P33,650 and enjoyed additional benefits, such as a car plan, among others. In February 1998, SMART launched an organizational realignment and Astorga's division was abolished. Astorga was terminated and a case for illegal dismissal was filed. In the meantime, on May 18, 1998, SMART sent a letter to Astorga demanding that she pay the current market value of the Honda Civic which was given to her under the company's car plan program, or to surrender the same to the company for proper disposition. Astorga, however, failed and refused to do either, thus prompting SMART to file a suit for replevin with the RTC of Makati on August 10, 1998. Astorga moved to dismiss the complaint arguing that the regular courts have no jurisdiction over the complaint because the subject thereof pertains to a benefit arising from an employment contract; hence, jurisdiction over the same is vested in the labor tribunal and not in regular courts. Issue WON the RTC has jurisdiction over the replevin case. Held Yes. The RTC rightfully assumed jurisdiction over the suit and acted well within its discretion in denying Astorga's motion to dismiss. SMART's demand for payment of the market value of the car or, in the alternative, the surrender of the car, is not a labor, but a civil, dispute. It involves the relationship of debtor and creditor rather than employee-employer relations. As such, the dispute falls within the jurisdiction of the regular courts. Replevin is a possessory action, the gist of which is the right of possession in the plaintiff. The primary relief sought therein is the return of the property in specie wrongfully detained by another person. It is an ordinary statutory proceeding to adjudicate rights to the title or possession of personal property. The question of whether or not a party has the right of possession over the property involved and if so, whether or not the adverse party has wrongfully taken and detained said property as to require its return to plaintiff, is outside the pale of competence of a labor tribunal and beyond the field of specialization of Labor Arbiters. The labor dispute involved is not intertwined with the issue in the Replevin Case. The respective issues raised in each forum can be resolved independently on the other. Topic: Replevin – Property seized should not be immediately delivered to the plaintiff, and the sheriff must retain custody of the seized property for at least five days. HAO v ANDRES A.M. NO. P-072384 JUNE 18, 2008 QUISUMBING, J. / DIVISION Facts Kenneth Hao (Hao) is one of the defendants in a civil case for replevin. On October 17, 2005, Judge Renato Fuentes (Judge Fuentes) issued an Order of Seizure against 22 motor vehicles allegedly owned by Zenaida Silver (Silver). Abe Andres (Andres), Sheriff IV, was able to seize nine of the subject motor vehicles on the strength of the said order on October 17, 18, and 19, 2005. Hao filed an administrative complaint against Andres on the ground that the vehicles were seized in an oppressive manner. Hao alleged that Andres was accompanied by unidentified armed personnel on board a military vehicle which was excessive since there was no resistance. Moreover, Hao also discovered that the compound where the vehicles were found after they were seized is owned by Silver. Upon approval of a counter-replevin bond, Andres was ordered to immediately cease and desist from further implementing the order of seizure as well as to return the seized motor vehicles. However, 8 out of 9 seized vehicles were reported missing. When a policeman reported that a man was allowed by Silver to enter the compound to duplicate the vehicle keys, Hao accused Andres of conspiring and conniving with Atty. Oswaldo Macadangdang (Atty. Macadangdang) – Silver's counsel – and the policemen in carnapping the vehicles. Hao also accused Andres of concealing the depository receipts. Andres denied all allegations of harassment or oppression. Judge Fuentes found Andres guilty of negligence, and recommended his suspension from office after finding numerous irregularities in the implementation of the writ. The Office of the Court Administrator opined that Andres should only be held liable for simple neglect of duty and just be suspended for one (1) month and one (1) day. Issue WON a sheriff who implemented the writ of replevin improperly should be held guilty of gross neglect of duty Held Yes. Being an officer of the court, Andres must be aware that there are well-defined steps provided in the Rules of Court regarding the proper implementation of a writ of replevin and/or an order of seizure. First, the rules provide that the property seized under a writ of replevin is not to be delivered immediately to the plaintiff. In accordance with the said rules, Andres should have waited no less than five days in order to give the complainant an opportunity to object to the sufficiency of the bond or of the surety or sureties thereon, or require the return of the seized motor vehicles by filing a counterbond. It matters not that Silver was in possession of the seized vehicles merely for safekeeping as stated in the depository receipts. The rule is clear that the property seized should not be immediately delivered to the plaintiff, and the sheriff must retain custody of the seized property for at least five days. Hence, the act of Andres in delivering the seized vehicles immediately after seizure to Silver for whatever purpose without observing the five-day requirement finds no legal justification. Second, it must be stressed that from the moment an order of delivery in replevin is executed by taking possession of the property specified therein, such property is in custodial egis. As legal custodian, it is Andres’ duty to safekeep the seized motor vehicles. Hence, when he passed his duty to safeguard the motor vehicles to Silver, he committed a clear neglect of duty. Third, the Court is appalled that Andres failed to take extra precautionary measures to ensure the safety of the vehicles especially after learning that there was unauthorized duplication of the vehicle keys. Under these circumstances, even an ordinary prudent man would have exercised extra diligence. /mimc Topic: No prior demand need for the application of Replevin ROGER V. NAVARRO vs. HON. JOSE L. ESCOBIDO, Presiding Judge, RTC Branch 37, Cagayan de Oro City, and KAREN T. GO, doing business under the name KARGO ENTERPRISES G.R. No. 153788. November 27, 2009 BRION, J; Division FACTS: On September 12, 1998, respondent Karen T. Go filed two complaints, docketed as Civil Case Nos. 98-599 (first complaint) and 98-598 (second complaint), before the RTC for replevin and/or sum of money with damages against Navarro. In these complaints, Karen Go prayed that the RTC issue writs of replevin for the seizure of two (2) motor vehicles in Navarro's possession. In his Answers, Navarro alleged as a special affirmative defense that the two complaints stated no cause of action, since Karen Go was not a party to the Lease Agreements with Option to Purchase (collectively, the lease agreements) — the actionable documents on which the complaints were based. In its May 8, 2000 order, the RTC dismissed the case on the ground that the complaints did not state a cause of action. However, RTC reversed the dismissal in response to the motion for reconsideration Karen Go. When the RTC denied Navarro's motion for reconsideration on March 7, 2001, Navarro filed a petition for certiorari with the CA. The CA denied Navarro's petition and affirmed the RTC's order. On appeal to the SC, Navarro maintains that the complaints were premature because no prior demand was made on him to comply with the provisions of the lease agreements before the complaints for replevin were filed. Lastly, Navarro posits that since the two writs of replevin were issued based on flawed complaints, the vehicles were illegally seized from his possession and should be returned to him immediately. ISSUE: Whether or not prior demand is required before the filing of replevin action. HELD: For a writ of replevin to issue, all that the applicant must do is to file an affidavit and bond, pursuant to Section 2, Rule 60 of the Rules, which states: Sec. 2. A ffidavit 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. We see nothing in these provisions which requires the applicant to make a prior demand on the possessor of the property before he can file an action for a writ of replevin. Thus, prior demand is not a condition precedent to an action for a writ of replevin. More importantly, Navarro is no longer in the position to claim that a prior demand is necessary, as he has already admitted in his Answers that he had received the letters that Karen Go sent him, demanding that he either pay his unpaid obligations or return the leased motor vehicles. Navarro's position that a demand is necessary and has not been made is therefore totally unmeritorious. Topic: The remedies provided for in Art. 1484 are alternative, not cumulative. The exercise of one bars the exercise of the others. Spouses Agner vs. BPI Family Savings Bank, Inc. G.R. No. 182963. June 3, 2013 Peralta, J.; Division Facts On February 15, 2001, Sps. Agner executed a Promissory Note with Chattel Mortgage in favor of Citimotors, Inc. The contract provides, among others, that: for receiving the amount of Php834,768.00, petitioners shall pay Php17,391.00 every 15th day of each succeeding month until fully paid; the loan is secured by a 2001 Mitsubishi Adventure Super Sport; and an interest of 6% per month shall be imposed for failure to pay each installment on or before the stated due date. On the same day, Citimotors, Inc. assigned all its rights, title and interests to ABN AMRO which was likewise assigned to BPI Family. For failure to pay four successive installments, BPI sent a demand letter dated August 29, 2002 declaring the entire obligation as due and demandable and requiring to pay Php576,664.04, or surrender the mortgaged vehicle immediately upon receiving the letter. As the demand was left unheeded, an action for Replevin and Damages before the Manila RTC was filed (October 4, 2002). A writ of replevin was issued. Despite this, the subject vehicle was not seized. Trial on the merits ensued. On August 11, 2005, the RTC ruled for the respondent and ordered petitioners to jointly and severally pay the amount of Php576,664.04 plus interest. Petitioners appealed the decision to the CA, but the CA affirmed the lower court's decision and, subsequently, denied the motion for reconsideration; hence, this petition. Issue WON BPI's remedy of resorting to both actions of replevin and collection of sum of money is contrary to the provision of Article 1484 of the Civil Code and the Elisco Tool Manufacturing Corporation v. CA. Held No. Compared with Elisco, the vehicle subject matter of this case was never recovered and delivered to respondent despite the issuance of a writ of replevin. As there was no seizure that transpired, it cannot be said that petitioners were deprived of the use and enjoyment of the mortgaged vehicle or that respondent pursued, commenced or concluded its actual foreclosure. The trial court, therefore, rightfully granted the alternative prayer for sum of money, which is equivalent to the remedy of[exacting fulfillment of the obligation. Certainly, there is no double recovery or unjust enrichment to speak of. VS. In Elisco: Petitioner prayed that private respondents be made to pay the sum of P39,054.86, the amount that they were supposed to pay as of May 1986, plus interest at the legal rate. At the same time, it prayed for the issuance of a writ of replevin or the delivery to it of the motor vehicle "complete with accessories and equipment." In the event the car could not be delivered to petitioner, it was prayed that private respondent Rolando Lantan be made to pay petitioner the amount of P60,000.00, the "estimated actual value" of the car, "plus accrued monthly rentals thereof with interests at the rate of fourteen percent (14%) per annum until fully paid." This prayer of course cannot be granted, even assuming that private respondents have defaulted in the payment of their obligation. This led the trial court to say that petitioner wanted to eat its cake and have it too. E. Support Topic: Support Pendente Lite – The right to life cannot be renounced hence support which is the means to attain the former cannot be renounced. DE ASIS v CA G.R. NO. 127578 FEBRUARY 15, 1999 PURISIMA, J. / DIVISION Facts Vircel Andres (Andres), in her capacity as the legal guardian/mother of minor Glen Camil Andres de Asis (Glen), brought an action for maintenance and support against Manuel de Asis (Manuel). Andres alleges that Manuel is the father of Glen and the former refused and/or failed to provide the maintenance of the latter despite repeated demands. In his Answer, Manuel denied his paternity over Glen and theorized that he cannot be required to provide support for him. Andres then sent in a manifestation of her intent to withdraw the case as it seemed futile to claim support from someone who denied paternity over herchild. By virtue of which, both parties agreed to move for the dismissal of the case, and the Regional Trial Court issued an Order dismissing the case with prejudice. However, another complaint was filed against Manuel for maintenance and support, filed in the name of Glen represented by Andres. Manuel moved to dismiss the complaint on the ground of res judicata. He argued that its allegations are similar with the first complaint which was dismissed with prejudice. The trial court denied the motion to dismiss, stating that res judicata is inapplicable in an action for support for the reason that renunciation or waiver of future support is prohibited by law. Manuel’s motion for reconsideration was likewise denied. Hence, he filed a petition for certiorari with the Court of Appeals, but the same found it devoid of merit. Manuel filed a petition for certiorari, now contending that the manifestation sent in by Andres binds them and bars the present action for support, especially so because the order of the trial court explicitly stated that the dismissal of the case was with prejudice. Issue WON a complaint for support which was dismissed by virtue of a manifestation alleging lack of filiation bars the filing of another complaint for support Held No. The right to receive support can neither be renounced nor transmitted to a third person. The right to support being founded upon the need of the recipient to maintain his existence, he is not entitled to renounce or transfer the right for this would mean sanctioning the voluntary giving up of life itself. The right to life cannot be renounced hence support which is the means to attain the former cannot be renounced. To allow renunciation or transmission or compensation of the family right of a person to support is virtually to allow either suicide or the conversion of the recipient to a public burden. This is contrary to public policy. In the case at bar, petitioner would like us to believe that such manifestation admitting the futility of claiming support from him puts the issue to rest and bars any and all future complaint for support. The manifestation sent in by respondent's mother in the first case which acknowledged that it would be useless to pursue its complaint for support, amounted to renunciation as it severed the vinculum that gives the minor Glen Camil, the right to claim support from his putative parent, the petitioner. Furthermore, the agreement entered into between the petitioner and respondent's mother for the dismissal of the complaint for maintenance and support conditioned upon the dismissal of the counterclaim is in the nature of a compromise which cannot be countenanced. It violates the prohibition against any compromise of the right to support. Conformably, notwithstanding the dismissal of the first civil case and the lower court's pronouncement that such dismissal was with prejudice, the second action for support may still prosper. /mimc Topic: Compulsory support to victim’s child in accordance with law. PEOPLE vs. MANAHAN G.R. No. 128157. September 29, 1999. BELLOSILLO, J; En Banc FACTS: MANUEL MANAHAN alias Maning was found guilty of rape and sentenced to death by the court a quo. He was also ordered to indemnify the victim P50,000.00 as moral damages, pay the costs, and acknowledge and support the offspring of his indiscretion. This case is now before us on automatic review. ISSUE: Whether or not the RTC erred in imposing compulsory acknowledgement of victim’s child and support of the offspring. HELD: On the matter of acknowledgment and support of the child, a correction of the view of the court a quo is in order. Article 345 of The Revised Penal Code provides that persons guilty of rape shall also be sentenced to "acknowledge the offspring, unless the law should prevent him from doing so," and "in every case to support the offspring." In the case before us, compulsory acknowledgment of the child Melanie Tibigar is not proper there being a legal impediment in doing so as it appears that the accused is a married man. As pronounced by this Court in People v. Guerrero, "the rule is that if the rapist is a married man, he cannot be compelled to recognize the offspring of the crime, should there be any, as his child, whether legitimate or illegitimate." Consequently, that portion of the judgment under review is accordingly deleted. In any case, we sustain that part ordering the accused to support the child as it is in accordance with law. Topic: The obligation to provide legal support passes on to ascendants not only upon default of the parents but also for the latter's inability to provide sufficient support. Spouses Lim vs. Lim G.R. No. 163209. October 30, 2009 Carpio, J; Division Facts In 1979, respondent Cheryl S. Lim (Cheryl) married Edward Lim (Edward), son of petitioners. Cheryl bore Edward three children, respondents Lester Edward, Candice Grace and Mariano III. Cheryl, Edward and their children resided at the house of petitioners in Forbes Park, Makati City, together with Edward's ailing grandmother, Chua Giak and her husband Mariano Lim (Mariano). Edward's family business, which provided him with a monthly salary of P6,000, shouldered the family expenses. Cheryl had no steady source of income. On 14 October 1990, Cheryl abandoned the Forbes Park residence, bringing the children with her (then all minors), after a violent confrontation with Edward whom she caught with the in-house midwife of Chua Giak in what the trial court described "a very compromising situation." Cheryl, for herself and her children, sued petitioners, Edward, Chua Giak and Mariano (defendants) in the Regional Trial Court of Makati City, Branch 140 (trial court) for support. The trial court ordered Edward to provide monthly support of P6,000 pendente lite. Issue WON the grandparents are concurrently liable with Edward to provide support to Cheryl Lim and kids. Held Yes, but only limited to the monthly support needed by respondents Lester Edward, Candice Grace and Mariano III (Grandchildren). Although the obligation to provide support arising from parental authority ends upon the emancipation of the child, the same obligation arising from spousal and general familial ties ideally lasts during the obligee's lifetime. Also, while parental authority under Title IX pertains to parents, passing to ascendants only upon its termination or suspension, the obligation to provide legal support passes on to ascendants not only upon default of the parents but also for the latter's inability to provide sufficient support. Here, there is no question that Cheryl is unable to discharge her obligation to provide sufficient legal support to her children, then all school-bound. It is also undisputed that the amount of support Edward is able to give to respondents, P6,000 a month, is insufficient to meet respondents' basic needs. This inability of Edward and Cheryl to sufficiently provide for their children shifts a portion of their obligation to the ascendants in the nearest degree, both in the paternal (petitioners) and maternal lines, following the ordering in Article 199. To hold otherwise, and thus subscribe to petitioners' theory, is to sanction the anomalous scenario of tolerating extreme material deprivation of children because of parental inability to give adequate support even if ascendants one degree removed are more than able to fill the void. However, petitioners' partial concurrent obligation extends only to their descendants as this word is commonly understood to refer to relatives, by blood of lower degree. Topic: Support Pendente Lite – When filiation is beyond question, support follows as a matter of obligation; a parent is obliged to support his child, whether legitimate or illegitimate. GOTARDO v BULING G.R. NO. 165166 AUGUST 15, 2012 BRION, J. / DIVISION Facts Charles Gotardo (Gotardo) courted Divina Buling (Buling) and started intimate sexual relations with her. Buling became pregnant after several sexual encounters and Gotardo made plans to marry which did not pull through. Buling then filed a complaint for damages against Gotardo for breach of promise to marry which was resolved through amicable settlement. Buling gave birth to Gliffze but Gotardo failed to provide any support. She wrote a demand letter which was unanswered hence the present petition. Gotardo maintains that he first had sexual contact with Buling in the first week of August 1994 and she could not have been pregnant for twelve (12) weeks (or three (3) months) when he was informed of the pregnancy on September 15, 1994. During the pendency of the case, the RTC, on the respondent’s motion granted a ₱2,000.00 monthly child support, retroactive from March 1995. The RTC eventuallly ruled in favor of Buling and ordered that the monthly support paid prior be returned. Upon Buling's appeal, the decision was reversed by the Court of Appeals on the ground that Buling made an honest mistake in understanding the questions during trial hence the erroneous dates of their sexual encounters. The child support was reinstated and Gotardo was ordered to recognize the minor as his child. On appeal, Gotardo argued that record is replete with evidence of his paternity hence the CA committed a reversible error. Issue WON reinstatement of child support based on prima facie evidence of paternity was proper Held Yes. In Herrera v. Alba, the Court explained that a prima facie case exists if a woman declares — supported by corroborative proof — that she had sexual relations with the putative father; at this point, the burden of evidence shifts to the putative father. The Court explained further that the two affirmative defenses available to the putative father are: (1) incapability of sexual relations with the mother due to either physical absence or impotency, or (2) that the mother had sexual relations with other men at the time of conception. In this case, the respondent established a prima facie case that the petitioner is the putative father of Gliffze through testimony that she had been sexually involved only with one man, the petitioner, at the time of her conception. Evidence corroborated her testimony that the petitioner and the respondent had intimate relationship. Since filiation is beyond question, support follows as a matter of obligation; a parent is obliged to support his child, whether legitimate or illegitimate. Support consists of everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. Thus, the amount of support is variable and, for this reason, no final judgment on the amount of support is made as the amount shall be in proportion to the resources or means of the giver and the necessities of the recipient. It may be reduced or increased proportionately according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to support. /mimc Topic: Judgment for support does not become final. SUSAN LIM-LUA, petitioner, vs. DANILO Y. LUA, respondent. [G.R. Nos. 175279-80. June 5, 2013.] VILLARAMA, JR., J; Division FACTS: On September 3, 2003, petitioner Susan Lim-Lua filed an action for the declaration of nullity of her marriage with respondent Danilo Y. Lua In her prayer for support pendente lite for herself and her two children, petitioner sought the amount of P500,000.00 as monthly support, citing respondent's huge earnings from salaries and dividends in several companies and businesses here and abroad. After due hearing, Judge Raphael B. Yrastorza, Sr. issued an Order... granting support pendente lite From the evidence already adduced by the parties, the amount of Two Hundred Fifty (P250,000.00) Thousand Pesos would be sufficient to take care of the needs of the plaintiff. This amount excludes the One hundred thirty-five (P135,000.00) Thousand Pesos... for medical attendance expenses needed by plaintiff for the operation of both her eye[s] which is demandable upon the conduct of such operation. The amounts already extended to the two (2) children, being a commendable act of defendant, should be continued by him... considering the vast financial resources at his disposal. Respondent filed a motion for reconsideration asserting that petitioner is not entitled to spousal support considering that she does not maintain for herself a separate dwelling from their children and respondent has continued to support the family for... their sustenance and well-being in accordance with family's social and financial standing. As to the P250,000.00 granted by the trial court as monthly support pendente lite, as well as the P1,750,000.00 retroactive support, respondent found it unconscionable and... beyond the intendment of the law for not having considered the needs of the respondent. His second motion for reconsideration having been denied, respondent filed a petition for certiorari in the CA On April 12, 2005, the CA rendered its Decision,... nullified and set aside and instead a new one is entered... to pay private respondent a monthly support pendente lite of P115,000.00 ORDERING the deduction of the amount of PhP2,482,348.16 plus 946,465.64, or a total of PhP3,428,813.80 from the current total support in arrears of Danilo Y. Lua to his wife, Susan Lim Lua and their two (2) children; The appellate court said that the trial court should not have completely disregarded the expenses incurred by respondent consisting of the purchase and maintenance of the two cars, payment of tuition fees, travel expenses, and the credit card purchases involving groceries, dry... goods and books, which certainly inured to the benefit not only of the two children, but their mother (petitioner) as well. Petitioner filed a motion for reconsideration but it was denied by the CA ISSUE: Whether or not the court erred in ordering the deduction of the amount of PHP2,482,348.16 plus PHP946,465.64, OR A TOTAL OF PHP3,428,813.80 from the current total support in arrears of the respondent to the petitioner and their children. HELD: Judicial determination of support pendente lite in cases of legal separation and petitions for declaration of nullity or annulment of marriage are guided by the following provisions of the Rule on Provisional Orders. Since the amount of monthly support pendente lite as fixed by the CA was not appealed by either party, there is no controversy as to its sufficiency and reasonableness. The dispute concerns the deductions made by respondent in settling the support in arrears. Here, the CA should not have allowed all the expenses incurred by respondent to be credited against the accrued support pendente lite. As earlier mentioned, the monthly support pendente lite granted by the trial court was intended primarily for food, household expenses such as salaries of drivers and house helpers, and also petitioner's scoliosis therapy sessions. Hence, the value of two expensive cars bought by respondent for his children plus their maintenance cost, travel expenses of petitioner and Angelli, purchases through credit card of items other than groceries and dry goods (clothing) should have been disallowed, as these bear no relation to the judgment awarding support pendente lite. Suffice it to state that the matter of increase or reduction of support should be submitted to the trial court in which the action for declaration for nullity of marriage was filed, as this Court is not a trier of facts. The amount of support may be reduced or increased proportionately according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to support. As held in Advincula v. Advincula: . . . Judgment for support does not become final. The right to support is of such nature that its allowance is essentially provisional; for during the entire period that a needy party is entitled to support, his or her alimony may be modified or altered, in accordance with his increased or decreased needs, and with the means of the giver. It cannot be regarded as subject to final determination Topic: Protection orders enables the court to ensure financial support. Republic (AFP) vs. Daisy R. Yahon G.R. No. 201043. June 16, 2014 Villarama, Jr., J.; Division Facts Daisy R. Yahon (respondent) filed a petition for the issuance of protection order under the provisions of RA No. 9262 (Anti-Violence Against Women and Their Children Act of 2004), against her husband, S/Sgt. Charles A. Yahon, enlisted personnel of the Philippine Army, who retired in January 2006. They were married on June 8, 2003 but did not have any child. Daisy has a daughter with her previous live-in partner. The RTC issued the TPO ordering, among others, a reasonable financial spousal support to Daisy. To insure that Daisy can receive a fair share of respondent's retirement and other benefits, certain agencies thru their heads are directed to WITHHOLD any retirement, pension and other benefits of respondent, S/SGT. CHARLES A. YAHON, Issue WON petitioner AFP may be ordered to automatically deduct a percentage from the retirement benefits of its enlisted personnel and give the same directly to the latter's lawful wife as spousal support in compliance with a protection order issued by the RTC pursuant to R.A. No. 9262. Held Yes. A protection order is an order issued by the court to prevent further acts of violence against women and their children, their family or household members, and to grant other necessary relief. Its purpose is to safeguard the offended parties from further harm, minimize any disruption in their daily life and facilitate the opportunity and ability to regain control of their life. Section 8 (g) of R.A. No. 9262 provides for relief such as: “g. Directing the respondent to provide support to the woman and/or her child if entitled to legal support. Notwithstanding other laws to the contrary, the court shall order an appropriate percentage of the income or salary of the respondent to be withheld regularly by the respondent's employer for the same to be automatically remitted directly to the woman. Failure to remit and/or withhold or any delay in the remittance of support to the woman and/or her child without justifiable cause shall render the respondent or his employer liable for indirect contempt of court;” 1. AFP argues that it violates PD 1638, RA 8291, & Rule 39 Section 13 on the exemption from liens, etc. The SC holds that Section 8 (g) of R.A. No. 9262, being a later enactment, should be construed as laying down an exception to the general rule that retirement benefits are exempt from execution. 2. AFP further argues that directive under the TPO to segregate a portion of S/Sgt. Yahon's retirement benefits was illegal because said moneys remain as public funds Section 8 (g) of R.A. No. 9262 used the general term "employer," which includes in its coverage the military institution, S/Sgt. Yahon's employer. Where the law does not distinguish, courts should not distinguish. Thus, Section 8 (g) applies to all employers, whether private or government. The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to safeguard the victim from greater risk of violence; to accord the victim and any designated family or household member safety in the family residence, and to prevent the perpetrator from committing acts that jeopardize the employment and support of the victim. It also enables the court to award temporary custody of minor children to protect the children from violence, to prevent their abduction by the perpetrator and to ensure their financial support. Topic: Support Pendente Lite – An order for recognition and support may create an unwholesome situation or may be an irritant to the family or the lives of the parties so that it must be issued only if paternity or filiation is established by clear and convincing evidence SALAS v MATUSALEM G.R. NO. 180284 SEPTEMBER 11, 2013 VILLARAMA, JR., J / DIVISION Facts Narciso Salas (Salas), 56 years old, impregnated Annabelle Matusalem (Matusalem), 24 years old, who believed that Salas is a widower. Salas rented an apartment where Matusalem stayed and shouldered all expenses in the delivery of their child. However, when Matusalem refused the offer of Salas' family to take the child from her, Salas abandoned her and her child and left them to the mercy of relatives and friends. Matusalem further alleged that she attempted suicide due to depression but still Salas refused to support her and their child Christian Paulo. Matusalem filed a complaint for Support/Damages against Salas and prayed for Support Pendente Lite, Salas described Matusalem as a woman of loose morals, having borne her first child also out of wedlock when she went to work in Italy. Jobless upon her return to the country, Matusalem was caught in unfortunate events and introduced herself to Salas whom she pleaded for charity as she was pregnant with another child. Salas denied paternity of the child; he was motivated by no other reason except genuine altruism when he shouldered the expenses, unaware of Salas' chicanery and deceit designed to “scandalize” him in exchange for financial favor. Matusalem presented as evidence testimony of a witness and Certificates of Live Birth and Baptism showing Salas as the father albeit not signed by him. The RTC ruled in favor of Matusalem and ordered Salas to pay monthly support of P2,000.00. Salas appealed to the Court of Appeals, which was denied on the ground that Salas never rebutted the testimonies of Matusalem and her witness. His motion for reconsideration was likewise denied. Salas filed a petition for review on certiorari on the ground that the CA erred in holding that his paternity over the child was sufficiently established. Issue WON the order to pay support based on the alleged putative father's failure to rebut testimonies of the mother and her witness is proper Held No. An illegitimate child is allowed to establish his claimed filiation by “any other means allowed by the Rules of Court and special laws,” like his baptismal certificate, a judicial admission, a family Bible in which his name has been entered, common reputation respecting his pedigree, admission by silence, the testimonies of witnesses, and other kinds of proof admissible under Rule 130 of the Rules of Court. Reviewing the records, the Court finds the totality of respondent’s evidence insufficient to establish that petitioner is the father of Christian Paulo. The testimonies of respondent and Murillo as to the circumstances of the birth of Christian Paulo, petitioner’s financial support while respondent lived in Murillo’s apartment and his regular visits to her at the said apartment, though replete with details, do not approximate the “overwhelming evidence, documentary and testimonial” presented in the Ilano case. In sum, the Court holds that the testimonies of respondent and Murillo, by themselves are not competent proof of paternity and the totality of respondent’s evidence failed to establish Christian Paulo’s filiation to petitioner. Time and again, the Court has ruled that a high standard of proof is required to establish paternity and filiation. An order for recognition and support may create an unwholesome situation or may be an irritant to the family or the lives of the parties so that it must be issued only if paternity or filiation is established by clear and convincing evidence. /mimc Topic: Foreigners have the obligation to support their minor children. NORMA A. DEL SOCORRO, for and in behalf of her minor child RODERIGO NORJO VAN WILSEM, vs. ERNST JOHAN BRINKMAN VAN WILSEM G.R. No. 193707. December 10, 2014 PERALTA, J ; Division FACTS: Petitioner Norma and respondent Ernst Johan contracted marriage in Holland. They were blessed with a son named Roderigo, who at the time of the filing of the instant petition was sixteen (16) years of age. Unfortunately, their marriage bond ended by virtue of a Divorce Decree issued by the appropriate Court of Holland. Thereafter, petitioner and her son came home to the Philippines. According to petitioner, respondent made a promise to provide monthly support to their son however, since the arrival of petitioner and her son in the Philippines, respondent never gave support to the son, Roderigo. Not long thereafter, respondent came to the Philippines and remarried in Cebu City, and since then, have been residing thereat. Petitioner, through her counsel, sent a letter demanding for support from respondent. However, respondent refused to receive the letter. Because of the foregoing circumstances, petitioner filed a complaint against respondent for violation of Section 5, paragraph E(2) of R.A. No. 9262 for the latter’s unjust refusal to support his minor child with petitioner. The RTC-Cebu issued the herein assailed Order, dismissing the instant criminal case against respondent on the ground that the facts charged in the information do not constitute an offense with respect to the respondent who is an alien, The RTC-Cebu issued an Order denying petitioner’s Motion for Reconsideration. Hence, the present Petition for Review on Certiorari. ISSUE: Whether or not a foreign national have an obligation to support his minor child under our Philippine Law? HELD: A foreign national has an obligation to support his minor child. Petitioner cannot rely on Article 195 of the New Civil Code in demanding support from respondent, who is a foreign citizen, since Article 15 of the New Civil Code stresses the principle of nationality. The obligation to give support to a child is a matter that falls under family rights and duties. Since the respondent is a citizen of Holland or the Netherlands he is subject to the laws of his country, not to Philippine law, as to whether he is obliged to give support to his child, as well as the consequences of his failure to do so. This does not, however, mean that respondent is not obliged to support petitioner’s son altogether. In international law, the party who wants to have a foreign law applied to a dispute or case has the burden of proving the foreign law. It is incumbent upon respondent to plead and prove that the national law of the Netherlands does not impose upon the parents the obligation to support their child (either before, during or after the issuance of a divorce decree). In view of respondent’s failure to prove the national law of the Netherlands in his favor, the doctrine of processual presumption shall govern. Under this doctrine, if the foreign law involved is not properly pleaded and proved, our courts will presume that the foreign law is the same as our local or domestic or internal law. Thus, since the law of the Netherlands as regards the obligation to support has not been properly pleaded and proved in the instant case, it is presumed to be the same with Philippine law, which enforces the obligation of parents to support their children and penalizing the non-compliance therewith. Such obligation is still duly enforceable in the Philippines because it would be of great injustice to the child to be denied of financial support when the latter is entitled thereto.