REPLEVIN: THE IMPLEMENTATION OF THE WRIT OF REPLEVIN SHOULD CONFORM TO THE REQUIREMENTS OF DUE PROCESS

Replevin is one of the most ancient actions known to law, taking its name from the object of its process. (Stone v. Church, 16 N.Y.S.2d 512, 515, 172 Misc. 1007, 1008 (1939). It originated in common law as a remedy against the wrongful exercise of the right of distress for rent (Sinnott v. Feiock, 59 N.E. 265, 165 N.Y. 444, 80 Am.S.R. 736, 53 L.R.A. 565  (1901); and Kurzweil v. Story & Clark Piano Co. and Blumgarten v. Mason & Hamlin Co., 159 N.Y.S. 231, 95 Misc. 484 (1916) and, according to some authorities, could only be maintained in such a case. (Palmer v. King, 41 App. DC. 419, L.R.A.1916D 278, Ann. Cas.1915C 1139 (1914). But by the weight of authority, the remedy is not and never was restricted to cases of wrongful distress in the absence of any statutes relating to the subject, but is a proper remedy for any unlawful taking. (Stone v. Church, 2216 N.Y.S.2d 512, 515, 172 Misc. 1007, 1008 (1939).

 “Replevied,” used in its technical sense, means delivered to the owner (Steuer v. Maguire, 66 N. E. 706, 707; 182 Mass. 575, 576 (1903) while the words “to replevy” means to recover possession by an action of replevin. (Tillson v. Court of Appeals, G.R. No. 89870, May 28, 1991, 197 SCRA 587, 598).

Broadly understood in this jurisdiction, replevin is both a form of principal remedy and of 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 to hold it pendente lite. (BA Finance Corporation v. CA, 327 Phil. 716, 724-725 (1996). See also Tillson v. Court of Appeals, id.; Bouvier's Dictionary, Third (Rawle's) Revision, Vol. 2; Black's Law Dictionary, Sixth Edition, p. 1299). The action is primarily possessory in nature and generally determines nothing more than the right of possession. (BA Finance Corporation v. CA, supra, at 725). The law presumes that every possessor is a possessor in good faith. (Art. 527 of the New Civil Code). He is entitled to be respected and protected in his possession (Art. 539 of the New Civil Code) as if he were the true owner thereof until a competent court rules otherwise (Yu v. Honrado, No. 50025, August 21, 1980, 99 SCRA 273, 277, citing Chua Hai v. Kapunan,  Jr., etc. and Ong Shu, 104 Phil. 110, 118 (1958).

Before a final judgment, property cannot be seized unless by virtue of some provision of law. (Heath v. Steamer “San Nicolas,” 7 Phil. 532, 538 (1907). The Rules of Court, under Rule 60, authorizes such seizure in cases of replevin. However, a person seeking a remedy in an action for replevin must follow the course laid down in the statute, since the remedy is penal in nature. (Weaver Piano Co., Inc. v. Curtis, 158 S.C. 117; 155 SE 291, 300 (1930).

When no attempt is made to comply with the provisions of the law relating to seizure in this kind of action, the writ or order allowing the seizure is erroneous and may be set aside on motion (Heath v. Steamer “San Nicolas) by the adverse party. Be it noted, however, that a motion to quash the writ of replevin goes to the technical regularity of procedure, and not to the merits of the case (Cummings v. Gordon, 29 Pa. Dist. 740; 77 C.J.S. 120) in the principal action.

The process regarding the execution of the writ of replevin in Section 4 of Rule 60 is unambiguous: the sheriff, upon receipt of the writ of replevin and prior to the taking of the property, must serve a copy thereof to the adverse party (petitioner, in this case) together with the application, the affidavit of merit, and the replevin bond. (Sec. 4, Rule 60 of the Rules of Court).

The reasons are simple, i.e., to provide proper notice to the adverse party that his property is being seized in accordance with the court’s order upon application by the other party, and ultimately to allow the adverse party to take the proper remedy consequent thereto.

Service of the writ upon the adverse party is mandatory in line with the constitutional guaranty on procedural due process and as safeguard against unreasonable searches and seizures. (Sections 1 and 2, Art. III of the Constitution).

If the writ was not served upon the adverse party but was instead merely handed to a person who is neither an agent of the adverse party nor a person authorized to receive court processes on his behalf, the service thereof is erroneous and is, therefore, invalid, running afoul of the statutory and constitutional requirements. The service is likewise invalid if the writ of replevin was served without the required documents.  Under these circumstances, no right to seize and to detain the property shall pass, the act of the sheriff being both unlawful and unconstitutional.

In the case at bar, petitioner avers that the writ of replevin was served upon the security guard where the rock-crushing plant to be seized was located. The signature of the receiving party indicates that the writ was received on April 29, 2003 by a certain Joseph Rejumo, the guard on duty in a plant in Sariaya, Quezon, where the property to be seized was located, and witnessed by Claudio Palatino, respondent’s caretaker. The sheriff’s return,  however, peremptorily states that both the writ of replevin and the summons were served upon Rivera. On May 8, 2003, or nine (9) days after the writ was served on the security guard, petitioner filed an answer to the complaint accompanied by a prayer for the approval of her redelivery bond. The RTC, however, denied the redelivery bond for having been filed beyond the five-day mandatory period prescribed in Sections 5 and 6 of Rule 60. But since the writ was invalidly served, petitioner is correct in contending that there is no reckoning point from which the mandatory five-day period shall commence to run.

The trial court is reminded that not only should the writ or order of replevin comply with all the requirements as to matters of form or contents prescribed by the Rules of Court. (Vicente Francisco, The Revised Rules of Court in the Philippines, Provisional Remedies, Vol. IV-A, 1971, p. 394, citing 77 C.J.S. 81-82).

 The writ must also satisfy proper service in order to be valid and effective: i.e. it should be directed to the officer who is authorized to serve it; and it should be served upon the person who not only has the possession or custody of the property involved but who is also a party or agent of a party to the action. Consequently, a trial court is deemed to have acted without or in excess of its jurisdiction with respect to the ancillary action of replevin if it seizes and detains a personalty on the basis of a writ that was improperly served, such as what happened in this case.

At the outset, petitioner’s proper remedy should have been to file a motion to quash the writ of replevin or a motion to vacate the order of seizure. Nevertheless, petitioner’s filing of an application for a redelivery bond, while not necessary, did not thereby waive her right to question the improper service. It now becomes imperative for the trial court to restore the parties to their former positions by returning the seized property to petitioner and by discharging the replevin bond filed by respondent. The trial, with respect to the main action, shall continue. Respondent may, however, file a new application for replevin should he choose to do so. (TERLYNGRACE RIVERA vs. FLORENCIO L. VARGAS, G.R. No. 165895, 2009 June 5, Nachura J). 

FORECLOSURE PROCEEDINGS: PERSONAL NOTICE TO THE MORTGAGOR IS NOT NECESSARY FOR THE VALIDITY OF THE PROCEEDINGS

In Philippine National Bank v. Nepomuceno Productions, Inc., the Supreme Court emphatically stated that the personal notice to the mortgagor is not necessary for the validity of the foreclosure proceedings.  Thus:

"The principal object of a notice of sale in a foreclosure of mortgage is not so much to notify the mortgagor as to inform the public generally of the nature and condition of the property to be sold, and of the time, place, and terms of the sale. Notices are given to secure bidders and prevent a sacrifice of the property. Clearly, the statutory requirements of posting and publication are mandated, not for the mortgagor’s benefit, but for the public or third persons. In fact, personal notice to the mortgagor in extrajudicial foreclosure proceedings is not even necessary, unless stipulated." x x x (RESORT HOTELS CORPORATION vs. DEVELOPMENT BANK OF THE PHILIPPINES and SM INVESTMENT CORPORATION, G.R. No. 180439, December 23, 2009, NACHURA, J.).

FORECLOSURE PROCEEDINGS: THE BURDEN OF PROOF THAT FORECLOSURE PROCEEDINGS ON THE SUBJECT PROPERTIES WERE NOT VALIDLY CONDUCTED LIES WITH THE MORTGAGOR-PARTY LITIGANT.

Section 1 of Rule 131 of the Rules of Court, in relation to Section 1 of Rule 133, unequivocally provides:

SECTION 1. Burden of proof. – Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law.

SECTION 1. Preponderance of evidence, how determined. – In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.

Ei incumbit probatio qui dicit, non qui negat (he who asserts, not he who denies, must prove). (Homeowners Savings and Loan Bank v. Dailo, G.R. No. 153802, March 11, 2005, 453 SCRA 283, 292).

Undoubtedly, the burden of proof that foreclosure proceedings on the subject properties were not validly conducted lies with mortgagor-party litigant claiming such.
The Supreme Court has consistently applied the ancient rule that if a plaintiff, upon whom rests the burden of proving his cause of action, fails to show in a satisfactory manner facts on which he bases his claim, the defendant is under no obligation to prove his exception or defense (Castilex Industrial Corporation v. Vasquez, Jr., 378 Phil. 1009 (1999). (RESORT HOTELS CORPORATION vs. DEVELOPMENT BANK OF THE PHILIPPINES and SM INVESTMENT CORPORATION, G.R. No. 180439, December 23, 2009, NACHURA, J.).  

DOCTRINE OF FINALITY OF JUDGMENT

The importance of the doctrine of the finality of judgment has always been emphasized by the Supreme Court.

In Pasiona, Jr. v. Court of Appeals, G.R. No. 165471, July 21, 2008, 559 SCRA 137, 145-146, the Supreme Court has expounded on the said doctrine, thus:

The Court re-emphasizes the doctrine of finality of judgment. In Alcantara v. Ponce, G.R. No. 131547, December 15, 2005, 478 SCRA 27, the Court, citing its much earlier ruling in Arnedo v. Llorente, 18 Phil. 257 (1911)stressed the importance of said doctrine, to wit:  

It is true that it is the purpose and intention of the law that courts should decide all questions submitted to them "as truth and justice require," and that it is greatly to be desired that all judgments should be so decided; but controlling and irresistible reasons of public policy and of sound practice in the courts demand that at the risk of occasional error, judgments of courts determining controversies submitted to them should become final at some definite time fixed by law, or by a rule of practice recognized by law, so as to be thereafter beyond the control even of the court which rendered them for the purpose of correcting errors of fact or of law, into which, in the opinion of the court it may have fallen. The very purpose for which the courts are organized is to put an end to controversy, to decide the questions submitted to the litigants, and to determine the respective rights of the parties. With the full knowledge that courts are not infallible, the litigants submit their respective claims for judgment, and they have a right at some time or other to have final judgment on which they can rely as a final disposition of the issue submitted, and to know that there is an end to the litigation. (Alcantara v. Ponce; Arnedo v. Llorente, 18 Phil. 257 (1911).

Then, in Juani v. Alarcon, G..R. No. 166849, September 5, 2006, 501 SCRA 135. it was held, thus:

This doctrine of finality of judgment is grounded on fundamental considerations of public policy and sound practice. In fact, nothing is more settled in law than that once a judgment attains finality it thereby becomes immutable and unalterable. It may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land.

Again, in Dinglasan v. Court of Appeals, G.R. No. 145420, September 19, 2006, 502 SCRA 253, the Supreme Court declared that:

After the judgment or final resolution is entered in the entries of judgment, the case shall be laid to rest. x x x

x x x x

The finality of decision is a jurisdictional event which cannot be made to depend on the convenience of the party. To rule otherwise would completely negate the purpose of the rule on completeness of service, which is to place the date of receipt of pleadings, judgment and processes beyond the power of the party being served to determine at his pleasure.

The said doctrine, however, is applicable only when the judgment or decision is valid.

In Pascual vs. Pascual, the Supreme Court affirmed the ruling of the CA that the judgment in question is void since the RTC did not acquire jurisdiction over the person of the respondent since it is a well-entrenched principle that a void judgment can never become final.

As ruled by this Court in Metropolitan Bank & Trust Company v. Alejo, G.R. No. 141970, September 10, 2001, 364 SCRA 812, 823.

In Leonor v. Court of Appeals^, 326 Phil. 74, 88 (1996). and Arcelona v. Court of Appeals, 345 Phil. 250, 287, the we held thus:

A void judgment for want of jurisdiction is no judgment at all. It cannot be the source of any right nor the creator of any obligation. All acts performed pursuant to it and all claims emanating from it have no legal effect. Hence, it can never become final and any writ of execution based on it is void: "x x x it may be said to be a lawless thing which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head."

Verily, a void judgment can never become final. (CONSTANTINO A. PASCUAL, vs. LOURDES S. PASCUAL, G.R. No. 171916, December 4, 2009, PERALTA, J.)

            

THE COURT WILL NOT SIT FOR THE PURPOSE OF TRYING MOOT CASES

It is well settled that a court will not sit for the purpose of trying moot cases and spend its time in deciding questions, the resolution of which cannot in any way affect the rights of the person or persons presenting them.

Where the issues have become moot and academic, there is no justiciable controversy, thereby rendering the resolution of the same of no practical use or value. (Delgado v. Court of Appeals, G.R. No. 137881, 19 August 2005, 467 SCRA 418, 428). (SANTIAGO CUA, JR., et. al. vs. MIGUEL OCAMPO TAN et. al., G.R. No. 181455-56, December 4, 2009, CHICO-NAZARIO, J.).

SUBSTITUTED SERVICE OF SUMMONS

The Supreme Court gave an in-depth discussion as to the nature and requisites of substituted service in Manotoc v. Court of Appeals, et al., G. R. No. 130974, August 16, 2006, 499 SCRA 21, 34-37.  It laid down the following requirements to effect a valid substituted service:

          (1) Impossibility of Prompt Personal Service

The party relying on substituted service or the sheriff must show that defendant cannot be served promptly or there is impossibility of prompt service. (Arevalo v. Quilatan, 202 Phil. 256, 262 (1982). Section 8, Rule 14 provides that the plaintiff or the sheriff is given a "reasonable time" to serve the summons to the defendant in person, but no specific time frame is mentioned. "Reasonable time" is defined as "so much time as is necessary under the circumstances for a reasonably prudent and diligent man to do, conveniently, what the contract or duty requires that should be done, having a regard for the rights and possibility of loss, if any, to the other party." (Far East Realty Investment, Inc. v. Court of Appeals, 248 Phil. 497, 503-504 (1988).

Under the Rules, the service of summons has no set period. However, when the court, clerk of court, or the plaintiff asks the sheriff to make the return of the summons and the latter submits the return of summons, then the validity of the summons lapses. The plaintiff may then ask for an alias summons if the service of summons has failed. What then is a reasonable time for the sheriff to effect a personal service in order to demonstrate impossibility of prompt service? To the plaintiff, "reasonable time" means no more than seven (7) days since an expeditious processing of a complaint is what a plaintiff wants. To the sheriff, "reasonable time" means 15 to 30 days because at the end of the month, it is a practice for the branch clerk of court to require the sheriff to submit a return of the summons assigned to the sheriff for service. The Sheriff’s Return provides data to the Clerk of Court, which the clerk uses in the Monthly Report of Cases to be submitted to the Office of the Court Administrator within the first ten (10) days of the succeeding month. Thus, one month from the issuance of summons can be considered "reasonable time" with regard to personal service on the defendant.

Sheriffs are asked to discharge their duties on the service of summons with due care, utmost diligence, and reasonable promptness and speed so as not to prejudice the expeditious dispensation of justice. Thus, they are enjoined to try their best efforts to accomplish personal service on defendant. On the other hand, since the defendant is expected to try to avoid and evade service of summons, the sheriff must be resourceful, persevering, canny, and diligent in serving the process on the defendant. For substituted service of summons to be available, there must be several attempts by the sheriff to personally serve the summons within a reasonable period [of one month] which eventually resulted in failure to prove impossibility of prompt service. "Several attempts" means at least three (3) tries, preferably on at least two different dates. In addition, the sheriff must cite why such efforts were unsuccessful. It is only then that impossibility of service can be confirmed or accepted.

          (2) Specific Details in the Return

The sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted personal service. (Domagas v. Jensen, G.R. No. 158407, January 17, 2005, 448 SCRA 633). The efforts made to find the defendant and the reasons behind the failure must be clearly narrated in detail in the Return. The date and time of the attempts on personal service, the inquiries made to locate the defendant, the name/s of the occupants of the alleged residence or house of defendant and all other acts done, though futile, to serve the summons on defendant must be specified in the Return to justify substituted service. The form on Sheriff’s Return of Summons on Substituted Service prescribed in the Handbook for Sheriffs published by the Philippine Judicial Academy requires a narration of the efforts made to find the defendant personally and the fact of failure. (A Handbook for Sheriffs (October 2003, p. 116).  Supreme Court Administrative Circular No. 5 dated November 9, 1989 requires that "impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts," which should be made in the proof of service.

(3) A Person of Suitable Age and Discretion

If the substituted service will be effected at defendant’s house or residence, it should be left with a person of "suitable age and discretion then residing therein." (Revised Rules of Court, Rule 14, Sec. 8).

         

         A person of suitable age and discretion is one who has attained the age of full legal capacity (18 years old) and is considered to have enough discernment to understand the importance of a summons. "Discretion" is defined as "the ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed". (Webster’s Third New International Dictionary, p. 647 (1993).

          

           Thus, to be of sufficient discretion, such person must know how to read and understand English to comprehend the import of the summons, and fully realize the need to deliver the summons and complaint to the defendant at the earliest possible time for the person to take appropriate action. Thus, the person must have the "relation of confidence" to the defendant, ensuring that the latter would receive or at least be notified of the receipt of the summons. The sheriff must therefore determine if the person found in the alleged dwelling or residence of defendant is of legal age, what the recipient’s relationship with the defendant is, and whether said person comprehends the significance of the receipt of the summons and his duty to immediately deliver it to the defendant or at least notify the defendant of said receipt of summons. These matters must be clearly and specifically described in the Return of Summons.

(4) A Competent Person in Charge

If the substituted service will be done at defendant’s office or regular place of business, then it should be served on a competent person in charge of the place. Thus, the person on whom the substituted service will be made must be the one managing the office or business of defendant, such as the president or manager; and such individual must have sufficient knowledge to understand the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons. Again, these details must be contained in the Return. (CONSTANTINO A. PASCUAL, vs. LOURDES S. PASCUAL, G.R. No. 171916, December 4, 2009, PERALTA, J.)

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