Remedies of a Defendant in Replevin Cases

1.  Right to be Notified of Order of Replevin – Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together with a copy of the application, affidavit and bond, and must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody.

2.)  The property subject of replevin must be kept in a secure place.  After the sheriff has taken possession of the property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same.

3.  Right to Object to insufficiency of requirements.  The defendant can object to the sufficiency of the applicant’s bond, or of the surety or sureties thereon.  If he does not so object, he may, at any time before the delivery of the property to the applicant, require the return thereof, by filing with the court where the action is pending a bond executed to the applicant, in double the value of the property as stated in the applicant’s affidavit for the delivery thereof to the applicant, if such delivery be adjudged, and for the payment of such sum to him as may be recovered against the adverse party, and by serving a copy of such bond on the applicant.

 

Sample of an Extrajudicial Partition Agreement (with Sale of Property)

 

 

EXTRA-JUDICIAL SETTLEMENT OF ESTATE WITH ABSOLUTE SALE

KNOW ALL MEN BY THESE PRESENTS:

We, _____________ and _____________, of legal ages, (single / married / widow), residents of _____________ and _____________, respectively, on our own volition, declare as follows:

1. That we are the legitimate children and sole heirs of the deceased _____________ who died on _____________ at _____________;

2. That said deceased died intestate, without any Last Will or Testament, and without any outstanding debts or accounts;

3. That the deceased left a certain parcel of land covered by Transfer Certificate of Title No. _____________ and more particularly described as follows:

(Technical Description of Property)

4. That the above-described parcel of land is not tenanted and does not come within the operation of the Comprehensive Agrarian Reform Program;

5. That pursuant to Section 1 of Rule 74 of the Revised Rules of Court of the Philippines, and both being with full capacity to contract, we do hereby adjudicate unto ourselves the land described above, in equal shares pro indiviso;

6. That FURTHER, and for and in consideration of the sum of _____________ (P_____________), Phil¬ippine Currency, receipt of which is herby acknowledged by us to our full and complete satisfac¬tion, we do hereby SELL, CONVEY, and TRANSFER by way of ABSOLUTE SALE unto _____________, (his/her) heirs, assigns and successors-in-interests, all our rights, interests and participation over the above-described parcel of land;

IN WITNESS WHEREOF, we have hereunto set our hands, this _____________ at _____________, Philippines.

HEIR/SELLER HEIR/SELLER

SIGNED IN THE PRESENCE OF: 

__________________ __________________

(ACKNOWLEDGMENT)

Sample of an Extrajudicial Partition Agreement (with Sale of Property)

 

 

EXTRA-JUDICIAL SETTLEMENT OF ESTATE WITH ABSOLUTE SALE

KNOW ALL MEN BY THESE PRESENTS:

We, _____________ and _____________, of legal ages, (single / married / widow), residents of _____________ and _____________, respectively, on our own volition, declare as follows:

1. That we are the legitimate children and sole heirs of the deceased _____________ who died on _____________ at _____________;

2. That said deceased died intestate, without any Last Will or Testament, and without any outstanding debts or accounts;

3. That the deceased left a certain parcel of land covered by Transfer Certificate of Title No. _____________ and more particularly described as follows:

(Technical Description of Property)

4. That the above-described parcel of land is not tenanted and does not come within the operation of the Comprehensive Agrarian Reform Program;

5. That pursuant to Section 1 of Rule 74 of the Revised Rules of Court of the Philippines, and both being with full capacity to contract, we do hereby adjudicate unto ourselves the land described above, in equal shares pro indiviso;

6. That FURTHER, and for and in consideration of the sum of _____________ (P_____________), Phil¬ippine Currency, receipt of which is herby acknowledged by us to our full and complete satisfac¬tion, we do hereby SELL, CONVEY, and TRANSFER by way of ABSOLUTE SALE unto _____________, (his/her) heirs, assigns and successors-in-interests, all our rights, interests and participation over the above-described parcel of land;

IN WITNESS WHEREOF, we have hereunto set our hands, this _____________ at _____________, Philippines.

HEIR/SELLER HEIR/SELLER

SIGNED IN THE PRESENCE OF: 

__________________ __________________

(ACKNOWLEDGMENT)

Caveat: Philippine Legal Forms Online

There are plenty of websites that offers pro-forma legal forms.  However, laymen (non-lawyers) are cautioned from using them without professional advice from lawyers.  This usually results to erroneous legal documentation and eventually expensive cases.

What is S.S. that appears on your Acknowledgment or Jurat?

“S.S.” is the abbreviation for “scilicet” – a Latin term meaning “namely” or “in particular.”  It is the predecessor of today’s familiar, and required, venue element. The pronunciation is  “SILL-le-cet.”

The Neypes Case: The Fresh 15 day Period Doctrine

The right to appeal is not a constitutional, natural or inherent right — it is a statutory privilege and of statutory origin and, therefore, available only if granted or as provided by statutes. It may be exercised only in the manner prescribed by the provisions of the law.¹⁴ The period to appeal is specifically governed by Section 39 of Batas Pambansa Blg. 129 (BP 129),¹⁵ as amended, Section 3 of Rule 41 of the 1997 Rules of Civil Procedure, and Section 6 of Rule 122 of the Revised Rules of Criminal Procedure.

Section 39 of BP 129, as amended, provides:

SEC. 39. Appeals. – The period for appeal from final orders, resolutions, awards, judgments, or decisions of any court in all cases shall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed from: Provided, however, That in habeas corpus cases, the period for appeal shall be forty-eight (48) hours from the notice of the judgment appealed from.

Section 3, Rule 41 of the 1997 Rules of Civil Procedure states:

SEC. 3. Period of ordinary appeal. ― The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order.

The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.

Section 6, Rule 122 of the Revised Rules of Criminal Procedure reads:

SEC. 6. When appeal to be taken. — An appeal must be taken within fifteen (15) days from promulgation of the judgment or from notice of the final order appealed from. This period for perfecting an appeal shall be suspended from the time a motion for new trial or reconsideration is filed until notice of the order overruling the motion has been served upon the accused or his counsel at which time the balance of the period begins to run.

In Neypes, the Court modified the rule in civil cases on the counting of the 15-day period within which to appeal. The Court categorically set a fresh period of 15 days from a denial of a motion for reconsideration within which to appeal, thus:

The Supreme Court may promulgate procedural rules in all courts. It has the sole prerogative to amend, repeal or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases. In the rules governing appeals to it and to the Court of Appeals, particularly Rules 42, 43 and 45, the Court allows extensions of time, based on justifiable and compelling reasons, for parties to file their appeals. These extensions may consist of 15 days or more.

To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration.

Henceforth, this “fresh period rule” shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution.¹⁶

The Court also reiterated its ruling that it is the denial of the motion for reconsideration that constituted the final order which finally disposed of the issues involved in the case.

The raison d’être for the “fresh period rule” is to standardize the appeal period provided in the Rules and do away with the confusion as to when the 15-day appeal period should be counted. Thus, the 15-day period to appeal is no longer interrupted by the filing of a motion for new trial or motion for reconsideration; litigants today need not concern themselves with counting the balance of the 15-day period to appeal since the 15-day period is now counted from receipt of the order dismissing a motion for new trial or motion for reconsideration or any final order or resolution.

While Neypes involved the period to appeal in civil cases, the Court’s pronouncement of a “fresh period” to appeal should equally apply to the period for appeal in criminal cases under Section 6 of Rule 122 of the Revised Rules of Criminal Procedure, for the following reasons:

First, BP 129, as amended, the substantive law on which the Rules of Court is based, makes no distinction between the periods to appeal in a civil case and in a criminal case. Section 39 of BP 129 categorically states that “[t]he period for appeal from final orders, resolutions, awards, judgments, or decisions of any court in all casesshall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment, or decision appealed from.” Ubi lex non distinguit nec nos distinguere debemos. When the law makes no distinction, we (this Court) also ought not to recognize any distinction.¹⁷

Second, the provisions of Section 3 of Rule 41 of the 1997 Rules of Civil Procedure and Section 6 of Rule 122 of the Revised Rules of Criminal Procedure, though differently worded, mean exactly the same. There is no substantial difference between the two provisions insofar as legal results are concerned – the appeal period stops running upon the filing of a motion for new trial or reconsideration and starts to run again upon receipt of the order denying said motion for new trial or reconsideration. It was this situation that Neypes addressed in civil cases. No reason exists why this situation in criminal cases cannot be similarly addressed.

Third, while the Court did not consider in Neypes the ordinary appeal period in criminal cases under Section 6, Rule 122 of the Revised Rules of Criminal Procedure since it involved a purely civil case, it did include Rule 42 of the 1997 Rules of Civil Procedure on petitions for review from the RTCs to the Court of Appeals (CA), and Rule 45 of the 1997 Rules of Civil Procedure governing appeals by certiorari to this Court, both of which also apply to appeals in criminal cases, as provided by Section 3 of Rule 122 of the Revised Rules of Criminal Procedure, thus:

SEC. 3. How appeal taken. — x x x x

(b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review under Rule 42.

Basis for Provisional Remedies in Petition for Review under Rule 45

AMENDMENTS TO RULES 41, 45, 58 AND 65
OF THE RULES OF COURT

Acting on the recommendation of the Chairperson and Members of the Subcommittee on the Revision of Rule 65 submitting for this Courts consideration and approval the proposed amendments to Rules 41, 45, 58 and 65 of the Rules of Court, the Court Resolved to APPROVE the same. hanrobles virtual law l

This Resolution shall take effect on December 27. 2007 following its publication in a newspaper of general circulation. hanrobles virtual law l

December 4, 2007

RULE 45

Section 1. Filing of petition with Supreme Court.  A party desiring to appeal by certiorari from a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law, which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency.

Hierarchy of Courts, Exception: Certiorari under Rule 45 on pure questions of law

In Chamber of Real Estate and Builders Associations, Inc. (CREBA) v. Secretary of Agrarian Reform,[12] a petition for certiorari filed under Rule 65 was dismissed for having been filed directly with the Court, violating the principle of hierarchy of courts, to wit:

Primarily, although this Court, the Court of Appeals and the Regional Trial Courts have concurrent jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence does not give the petitioner unrestricted freedom of choice of court forum. In Heirs of Bertuldo Hinog v. Melicor, citing People v. Cuaresma, this Court made the following pronouncements:

This Court’s original jurisdiction to issue writs of certiorari is not exclusive. It is shared by this Court with Regional Trial Courts and with the Court of Appeals. This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and also serves as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level (“inferior”) courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court’s original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is [an] established policy. It is a policy necessary to prevent inordinate demands upon the Court’s time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court’s docket. (Emphasis supplied.)

Similarly, there are no special and important reasons that petitioners cite to justify their direct recourse to this Court under Rule 65.

On the other hand, direct recourse to this Court has been allowed for petitions filed under Rule 45 when only questions of law are raised, as in this case.  Thus, the Court ruled in Barcenas v. Tomas:[13]

Section 1 of Rule 45 clearly states that the following may be appealed to the Supreme Court through a petition for review by certiorari: 1) judgments; 2) final orders; or 3) resolutions of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or similar courts, whenever authorized by law. The appeal must involve only questions of law, not of fact.

This Court has, time and time again, pointed out that it is not a trier of facts; and that, save for a few exceptional instances, its function is not to analyze or weigh all over again the factual findings of the lower courts. There is a question of law when doubts or differences arise as to what law pertains to a certain state of facts, and a question of fact when the doubt pertains to the truth or falsity of alleged facts.

Under the principle of the hierarchy of courts, decisions, final orders or resolutions of an MTC should be appealed to the RTC exercising territorial jurisdiction over the former. On the other hand, RTC judgments, final orders or resolutions are appealable to the CA through either of the following: an ordinary appeal if the case was originally decided by the RTC; or a petition for review under Rule 42, if the case was decided under the RTC’s appellate jurisdiction.

Nonetheless, a direct recourse to this Court can be taken for a review of the decisions, final orders or resolutions of the RTC, but only on questions of law. Under Section 5 of Article VIII of the Constitution, the Supreme Court has the power to

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

x x x x

(e) All cases in which only an error or question of law is involved.

This kind of direct appeal to this Court of RTC judgments, final orders or resolutions is provided for in Section 2(c) of Rule 41, which reads:

SEC. 2. Modes of appeal.¾

x x x x

(c) Appeal by certiorari.¾In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45.

Procedurally then, petitioners could have appealed the RTC Decision affirming the MTC (1) to this Court on questions of law only; or (2) if there are factual questions involved, to the CA — as they in fact did. Unfortunately for petitioners, the CA properly dismissed their petition for review because of serious procedural defects. This action foreclosed their only available avenue for the review of the factual findings of the RTC. (Emphasis supplied.)

In Artistica Ceramica, Inc. v. Ciudad Del Carmen Homeowner’s Association, Inc.,[14] citing Republic v. Court of Appeals,[15] the Court noted that it has the discretion to determine whether a petition was filed under Rule 45 or 65 of the Rules of Court:

The Supreme Court, in accordance with the liberal spirit pervading the Rules of Court and in the interest of justice, has the discretion to treat a petition for certiorari as having been filed under Rule 45, especially if filed within the reglementary period for filing a petition for review.

Dealing with a Good for Nothing Counsel

The general rule is that a client is bound by the acts, even mistakes, of his counsel in the realm of procedural technique. There are exceptions to this rule, such as when the reckless or gross negligence of counsel deprives the client of due process of law, or when the application of the general rule results in the outright deprivation of one’s property through a technicality. ESTATE OF FELOMINA G. MACADANGDANG vs. LUCIA GAVIOLA (G.R. No. 156809, March 4, 2009)

When presumption of conversion does not hold?

the Honorable Supreme Court held that a finding of prima facie evidence of accountability does not shatter the presumptive innocence petitioner enjoys because before prima facie evidence arises, certain facts still have to be proved (People vs. Mingoa, 92 Phil. 856 [1953]).

A long line of jurisprudence requires that conversion must be affirmatively proved, either by direct evidence or by the production of facts from which conversion necessarily follows (Madarang vs. Sandiganbayan, G.R. No. 112314, March 28, 2001).  If the accountable officer adduces evidence showing that, in fact, he has not put said funds or property to personal use, then that presumption is at an end and the prima facie case destroyed (US vs. Catolico, 18 Phil. 504, 1911).