• Writ of Replevin remedy to recover property

    Persida Acosta

    Persida Acosta

    Dear PAO
    I would just like to be clarified with the legal proceedings. It all started when my family was severely affected by Typhoon Yolanda in Leyte. I was then operating a tricycle here in Manila and was earning a decent amount. I sent some money to my family in Leyte to help them get back on their feet. However, it was simply not enough because we lost everything in Leyte including livestock, our house, and all our belongings. That is why I decided to seek help from my former neighbor in Cubao.

    I borrowed from him P50,000 to be paid after six months. As collateral, I left my tricycle with him. Due to hard work and some luck, I was able to pay my obligation to him within the six-month deadline. However, he is now refusing to return my tricycle because according to him, his son was using it to earn a living. He and I know that the tricycle rightfully belongs to me but he is simply refusing to return it. What should I do?

    Dear Berting,
    The 1997 Rules of Civil Procedure specifically allows an action to recover personal property together with an option to seek for a Writ of Replevin. This writ may be sought simultaneously with the main civil action to recover possession or at any time before the opposing party files his answer. Section 1, Rule 60 of the Rules of Court states:

    Section 1.Application. — 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. (1a)

    Section 2.Affidavit and bond. — 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 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 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.

    Considering that you are the legitimate owner of the tricycle, you are entitled to possess it by virtue of your full payment of your previous debt to your neighbor. You may avail of this remedy granted by the said Rule. Under this rule, you may seek for the recovery of your tricycle even while your main case is pending in court.

    A Writ of Replevin is a provisional remedy that provides instant relief to the person being deprived of his property. You need to comply with the requirements of the said rule in seeking for a favorable ruling from the court.

    Upon issuance of the writ, the sheriff would be directed to take the tricycle from your neighbor. At that point, the property will be returned to you. It is best to seek for a personal consultation with a lawyer so that you may begin this court process and file the appropriate pleadings in court in order to recover your tricycle.

    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.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net


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