• Seeking relief through application for replevin

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    Persida Acosta

    Persida Acosta

    Dear PAO,
    I have been separated from my husband. When we were still together, he bought a car on instalment basis, and I acted as the co-maker. The car was registered in his name. After the end of my contract for employment overseas, I discovered that my husband obtained also a job overseas and the car was left with my brother-in-law. I would like to recover the car considering that it belongs to the conjugal property, and somebody advised me to file a case for replevin. Is this remedy correct?
    Gariet

    Dear Gariet,
    An application for replevin is governed by Rule 60 of the 1997 Rules of Court. Section 1 of the law provides, “A party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before answer, apply for an order for the delivery of such property to him, in the manner hereinafter provided.”

    Under Section 2 of same rule, 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 tax assessment or a fine pursuant to a law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that 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.

    In your case, the application for replevin would not prosper. First, there must be a principal action for recovery of property before you can apply for replevin. Second, based on the above-enumerated requirements, it is essential that the applicant for replevin must be the owner of the property or must prove that he is entitled to its possession. From what you have stated in your letter, the car was registered in the name of your husband, thus, the latter is the proper party to file the case unless he will execute a special power of attorney authorizing you to file the case in his behalf. Your claim that the car belongs to the conjugal property has no connection with the issues in replevin.

    We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

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