REPLEVIN
plaintiff has a right
of possession
Nature of replevin
It may be a principal remedy or a provisional relief.
Principal remedy
Regain possession of personal chattels being wrongfully detained
from the plaintiff by another
It is possessory in essence because it seeks determination of the
right of possession of personal property
Ultimate goal: recover personal property capable of manual
delivery wrongfully detained by a person.
It is a suit in itself
Replevin is a possessory action. The gist is the right
of possession in the plaintiff
Primary relief return of the property wrongfully
detained by another person
It is an ordinary statutory proceeding to adjudicate
the rights to the title or possession of personal
property
Sec 1 Rule 60 presupposes the existence of a
principal action with a prayer for the recover of
possession of personal property
He may apply for an order for the delivery of the
property to him even before the judgment is rendered
in the principal action
Notes:
A creditor may obtain a writ of replevin as a
preliminary step for the foreclosure
In a foreclosure under chattel mortgage may be
commenced only upon default on the part of the
mortgagor of his obligation secured by the mortgage
The replevin, has been sought to pay the way for the
foreclosure of the object covered by the chattel
mortgage
Replevin, distinguished from preliminary attachment
REPLEVIN
Purpose:
Recover personal property
capable of manual delivery
from the adverse party
Possession / ownership:
Personal property belongs
either:
a. plaintiff; or
b. one over which the
Preliminary Attachment
Not really to recover but to
place the property under the
custody of the court to secure
satisfaction of the judgment
that may be rendered in favor
of the applicant at some
future time
When it could it be availed:
It can be availed of only
when the defendant is in
actual
or
constructive
possession of the personal
property
Extent:
Extends only to personal
property capable of manual
delivery
Concealment requirement:
It may be availed of even
without showing the property
is being concealed or
disposed, to the prejudice of
the applicant
Custodia legis:
Property under custodia legis
cannot be the object of
replevin
Bond:
The bond is double the value
of the property stated in the
affidavit submitted by the
applicant
Note:
It can be availed of even if
the property is in custody of
3rd persons
Extends to all kinds of
property (Real, personal,
incorporeal)
Needs to show the property is
being removed, concealed, or
disposed of in certain cases
It can be availed of even if
the property is in custodia
legis
The bond is equal to the fixed
by the court which is the
amount sufficient to satisfy
the applicants demand or
value of the property to be
attached
In injunction, the bond is the amount fixed by the
court, UNLESS the court exempts the applicant
from posting a bond.
In receivership, the bond is also fixed by the court
When a writ of replevin may be applied for
a.
b.
at the commencement of the action
any time before the answer
Procedure for the application for replevin; affidavit and
bond
(1) File an application for a writ of replevin
(2) The application must show by an affidavit executed by:
a. applicant; or
b. some other person who personally knows the facts
that matters required in Sec 2 Rule 60
(3) The affidavit shall:
Property does not belong to
the plaintiff but to the
defendant
a.
b.
particularly describe the property;
state the applicant is the owner or entitled to
possession (legal basis)
c.
d.
e.
state the property is wrongfully detained by the
adverse party
allege the cause of detention
to the best of his knowledge, information
and belief
state the property has not been:
distrained or taken for a tax assessment or a
fine pursuant to law
seized under a writ of execution or
preliminary attachment
placed in custodial legis
If it has been seized, then the
affidavit must state that it is exempt
from seizure or custody
state the actual market value of the property
(4) The applicant must give a bond
executed to adverse party
double the value of the property as stated in the
affidavit
Property in custodia legis
Replevin not available when the property is in
custodia legis due to an attachment or seizure
pursuant to a law
REASON:
There would be interference with the possession
before the function of the law had been performed as
to the process which the property was taken
In Sec 7 Rule 57 (Preliminary Attachment)
If the property sought to be attached is in custodia
legis
A copy of the writ of attachment shall be filed with
the proper court or quasi-judicial agency
And notice of the attachment served upon the
custodian of the property
The property should be lawfully held (seized in accordance
with the rule against warrantless searches and seizure or
accepted exception)
Just because a property is a subject of litigation, does
not automatically mean it is in custodia legis
It should also show that it has been and is subjected
to the official custody of a judicial executive officer
In pursuant of his execution of a legal writ
Hence, only when a property is lawfully taken by
virtue of legal process, it is considered in custody of
the law
If the personal property is seized under a search warrant and
there is a reason to believe the seizure will not anymore be
followed by filing of a criminal case:
Proper remedy filing of an action for replevin
If there are conflicting claims interpleader may be
filed in the proper court (not necessarily the court
which issued the search warrant)
If there is a possibility that the seizure will be followed by
filing of a criminal action or it has been commenced, or filed
and prosecuted, and there are conflicting claims:
Remedy question the validity of search warrant in
the same court which issued it
Not in any branch of the said court
RTC are devoid to pass upon the validity of the seizure and
forfeiture proceedings conducted by Bureau of Customs and to
enjoin and interfere with such
It is the Collector of Customs, sitting in seizure and
forfeiture proceedings
Who has the exclusive jurisdiction to hear and
determine all questions on seizure and forfeiture of
dutiable goods
The RTC is precluded from assuming cognizance
over the matter even thru certiorari, prohibition or
mandamus
REASON: No unnecessary hindrance on the
governments drive, not only to prevent smuggling
and other frauds upon Customs but also to render
effective and efficient the collection of import and
export duties due to the State (to enable the
government to carry out functions it needs to
perform)
Undertaking of replevin bond
The bond is for the:
a. return of the property to the adverse party if such
return is adjudged
b. payment to the adverse party of the sum he may
recover from the applicant in the action
If the award of damages was based on Art 19 and 20 of the
NCC and not on the deprivation of personal properties subject
of the replevin bond:
Recourse on the bond for the payment of damages is
not proper
It was ruled:
Replevin bond is to indemnify the defendant against
any loss because he was compelled to surrender the
possession of the disputed property pending the trial
of the action
Nor is the surety liable for payment of judgment for
damages rendered against the plaintiff on a
counterclaim or punitive damages for fraudulent acts
committed by plaintiff
And is not connected with the defendants
deprivation of possession by the plaintiff
Note:
If the judgment is in favor of the defendant wherein
he is entitled to the property, but no order was made
requiring the plaintiff to return it or assessing
damages in default of return
There could be no liability on the part of the sureties,
until judgment is entered wherein the property should
be restored
MTC may issue a writ of replevin, provided that the
value of the property involved is within its
jurisdiction
a.
b.
serve a copy of the order on the adverse party +
copy of the application, affidavit and bond
take custody of the property
(2) If the property is concealed in a building or enclosure:
sheriff is mandated to demand its delivery
if not delivered despite demand, sheriff is authorized
to cause the building or enclosure to be broken open
then take the property in his possession
(3) After the sheriff has taken custody of the property, he must
keep it in secure place
Order of the court
The court shall issue:
a. order
b. corresponding writ of replevin upon filing of affidavit
and approval of bond
The writ shall:
a. describe the personal property alleged to be
wrongfully detained
b. require the sheriff to take such property into his
custody
Duty of sheriff in the implementation of writ
(1) Upon receipt of court order, the sheriff must:
(4) The property is not to be immediately delivered to the
applicant because:
Within 5 days from the taking of the property, the
sheriff shall wait for the move of the adverse party
(5) If the adverse party does not object to the sufficiency of the
bond within the said period or fails to perform the acts
described in the Rules to return to him the property taken:
The property shall be delivered to the applicant
Redelivery bond; how adverse party may seek the return
of the property
