E. Replevin (Rule 60)

Replevin

To keep the property in the possession of the sheriff or to have the latter deliver the property to the applicant, the APPLICANT or his AGENT, on demand of said sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than double the value of the property as stated in the applicant’s affidavit. (Rule 60, Sec. 7)

Remedy: Nothing shall prevent claimant or any 3rd person from vindicating his claim to the property, or prevent the applicant from claiming damages against a 3rd -party claimant who filed a frivolous or plainly spurious claim, in the SAME or a SEPARATE action. (Rule 60, Sec. 7)

Replevin

Replevin, broadly understood, is both a form of principal remedy and of a provisional relief. It may refer either to the action itself, i.e., to regain the possession of personal chattels being wrongfully detained from the plaintiff by another, or to the provisional remedy that would allow the plaintiff to retain the thing during the pendency of the action and hold it in pendente lite. (Rivera v. Vargas, G.R. No. 165895, 2009)

Nature of an Action for Replevin

The action is primarily possessory in nature and determines nothing more than the right of possession. Replevin is so usually described as a mixed action, being partly in rem and partly in personam – in rem insofar as the recovery of specific property is concerned, and in personam as regards to damages involved. As an “action in rem,” the gist of the replevin action is the right of the plaintiff to obtain possession of specific personal property by reason of his being the owner or of his having a special interest therein. (BA Finance Corporation v. CA, G.R. No. 102998, 1996)

Enforceability of a Writ of Replevin

A writ of replevin issued by a Regional Trial Court or a Municipal Trial Court may be enforced anywhere in the Philippines. (Fernandez v. International Corporate Bank, G.R. No. 131283, 1999)

When Application May be Filed

A party may apply a writ of replevin to recover the possession of a personal property:

• At the commencement of the action; or
• At any time before defendant files answer. (Rule 60, Sec. 1)

Note: there can be no replevin before the appellate courts.

Applicant Need Not be the Owner

The applicant need not be the owner of the property. It is enough that he has a right to its possession. (Yang v. Valdez, G.R. No. 73317, 1989)

Note: A chattel mortgagee may maintain an action for replevin. Where the mortgage authorizes the mortgagee to take possession of the property on default, he may maintain an action to recover possession of the mortgaged chattels from the mortgagor or from any person in whose hands he may find them. This is irrespective of whether the mortgage contemplates a summary sale of the property or foreclosure by court action. (Agner v. BPI Family Savings Bank, G.R. No. 182963, 2013)

REQUISITES

For a writ of replevin to be issued, the following are required:

• An application must be timely filed (Sec. 1, Rule 60);
• The application must be supported by an affidavit (Sec 2, Rule 60);
• The applicant must give a bond executed to the adverse party. (Id.)

Procedure for the Application for Replevin

• Application for replevin must be filed at any time before defendant files an answer;
• Application must contain an affidavit executed by the applicant or some other person who personally knows of the facts the matters required under the Rules, which shows that:
• Applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof;
• Property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief;
• 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 or should be released from such seizure or custody; and
• Actual market value of the property;
• Applicant must give a replevin bond, executed to the adverse party and double the value of the property. (Rule 60, Sec. 2)

Note: A replevin bond is simply intended to indemnify the defendant against any loss that he may suffer by being compelled to surrender the possession of the disputed property pending the trial of the action. (Alim v. CA, G.R. No. 93213, 1991)

• Upon the filing of such affidavit and approval of the bond, the court shall issue an order and corresponding writ of replevin describing the personal property alleged to be wrongfully detained and requiring the sheriff forthwith to take such property into his custody. (Sec. 3, Rule 60)

Note: If the detention is actually allowed by law, then no replevin is allowed (Twin Ace Holding v. Rufina, G.R. No. 160191, 2006)

Updated: A replevin surety bond remains effective until the underlying proceeding is finally resolved, even without renewal (Enriquez v. Mercantile Insurance Co., Inc., G.R. No. 210950, 15 August 2018).

Remedies of Owner or Person Entitled to Possession to Secure Return of Property

• Object to the sufficiency of the bond or of the surety or sureties thereon (Sec 5, Rule 60);
• In this case, return cannot be immediately required;
• The result of this remedy is to require a bond in a higher amount i.e., a new bond. Only when this order is not complied with that the replevin is discharged.
• Filing of counterbond or redelivery bond (Id.)
• In this case, return can be immediately demanded;
• The bond must be double the value of the property as stated in the applicant’s affidavit;
• The redelivery bond answers for delivery of the subject property and payment of all sums as may be adjudged.
• Requisites:
• Must be filed before the delivery of property to the plaintiff and within 5 days after the taking of the property by the sheriff;
• Copy must be served to the plaintiff (also within 5 days after the taking of the property by the sheriff). (Sec. 6, Rule 60)

Disposition of Property by Sheriff

The sheriff shall deliver the property to the applicant if within 5 days after the taking of the property by the sheriff, the adverse party:

• Does not object to the sufficiency of the bond, or of the surety or sureties contained thereon; or
• So objects, and the court affirms its approval of the applicant’s bond or approves a new bond; or
• If the adverse party requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved bond. (Sec. 6, Rule 60)

If for any reason, the property is not delivered to the applicant, the sheriff MUST return the property to the adverse party. (Id.)

The Rules provide that property seized under a writ of replevin is not to be delivered immediately to the plaintiff. Under Section 6, Rule 60, the Sheriff should have waited no less than 5 days in order to give the complainant an opportunity to object to the sufficiency of the bond. (Hao v. Andres, A.M. No. P07-2384, 2008)