This article discusses the remedy of replevin under Philippine law, to recover possession of personal property unlawfully taken from another.
Replevin is a Civil Remedy to Recover Possession of Personal Property
Replevin is a customary and equitable civil remedy that a person can utilize when personal property, also called a movable (as opposed to real property or immovables), belonging to the applicant is unlawfully taken from him or her. Governed by Rule 60 of the Rules of Court, replevin is defined as a civil action for the recovery of personal property. It is a requirement that the personal property be wrongfully detained or possessed by another, and in violation of the rights of the plaintiff.
You can apply for a replevin of personal property simultaneous to the filing of your civil complaint, or at any time before the defendant files his or her answer. The civil complaint referred to here is generally one for the recovery of possession of personal property, though replevin, as a provisional remedy adjunct to another civil case, can be subsidiary to a civil case for foreclosure of a chattel mortgage, or even in cases of contractual breach, where the right to recover possession of personal property is express in the contract or agreement.
Thus, when for example, a couple breaks up, and your ex-girlfriend (or ex-boyfriend or former lover) refuses to return your dog, you can, technically speaking, replevin your dog, or file an action to recover possession of your dog. Dogs, pets, and other animals are included in the definition of personal property or movables under the Civil Code of the Philippines.
Steps to Secure a Writ of Replevin
All you need is proof that you own the pet. This proof is embraced in an application for replevin to be filed with the civil complaint, and requiring you to state under oath that: a) you have a dog which your ex-girlfriend (or ex-boyfriend or former lover) refuses to return (and alleging the reason for his or her refusal to return the dog), b) describing the dog in the affidavit and its actual market value, and that the dog has not been distrained or taken for a tax assessment or fine pursuant to law or otherwise seized or placed under custodia legis for another reason.
We all know that some personal properties are valued more than life itself. However, do not indicate that your dog is priceless, because this could impact your complaint (and the chances of reuniting with your pet) in two (2) ways. First, you have to pay a filing fee of roughly 2% of the value claimed in the complaint, and this includes the market value of the personal property that you indicated. Second, you have to post a bond equivalent to double the market value of the personal property which you are trying to recover. If you state that your dog is invaluable or priceless, you can expect your filing fee to also be priceless and indeterminable! For these reasons, try to state conservatively, the value of the chattel being recovered, taking full note of wear and tear, age, and other factors which could otherwise affect its value. If your dog bites, indicate that too (pun intended).
The Remedy of Replevin Applies only to Personal Property or Movables
If the subject matter for recovery of possession is personal property, specifically something that you can actually hold, touch, and of course, take physical possession of, the applicability of the remedy of replevin is quite clear. This holds true for mobile phones, computers, cars, jewelry, espresso machines, small equipment, and all other personal assets, which can be taken manually. Remember, the application of the rules on replevin is limited only to personal property and personal assets. There are other specific remedies applicable to recovering real property (accion publiciana, accion reivindicatoria, or accion interdictal) and these likewise cannot be invoked when recovering personal property. Suffice it to state that the delineation between these two (2) remedies, and of course, the subject matter that they cover, are quite clear.
The Civil Code Defines Personal Property or Movables
This is of course not to say the replevin cannot be applied to other things that you cannot hold, touch, or feel. The Civil Code of the Philippines, in Articles 416 and 417 provide a very illustrative definition of a movable or personal property. This includes those movables susceptible of appropriation which are not land or real property, forces of nature which are brought under control by science and all things which can be transported from place to place without impairment of the real property to which they are fixed. Thus, you can, through the remedy of replevin, recover thing that cannot be held or touched, so long as the Civil Code considers these items as personal property.
Do not try to replevin love, or what feelings your ex had for you, because you will go nowhere! Indeed, love is a force of nature. However, it is certainly not something which has been brought under the control of science, and to date, science has not been able to state, as a matter of law, why you had eyes for her (or him) in the first place!
The Court will issue the Writ of Replevin upon the Filing of an Affidavit and Posting of a Bond
You can invoke the equitable powers of the court to issue a writ of replevin over such personalty, and you might prevail (unless there is some defect in your affidavit that bars the court from issuing the writ). Compared to securing injunctive writs, courts appear to be more generous in evaluating applications for replevin.
As a matter of fact, Sec 3 of Rule 60 states that “[u]pon the filing of such affidavit and approval of the bond, the court shall issue an order and the 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.”
The reason here is that since the property will be covered by a replevin bond, in double the market value declared therein, the current possessor is amply protected if later on it will be discovered that he or she is the valid and lawful possessor of the personal property that is subject of the remedy and not the applicant for the replevin suit.
The Court’s Sheriff Will Enforce the Writ under Pain of Contempt
After the court issues the writ of replevin, you can be sure that the person unlawfully possessing your dog will receive a call from the court’s sheriff, demanding the return of the pet. This demand is actually quite a forceful demand, because if your ex-girlfriend (or ex-boyfriend or former lover) refuses to comply, the sheriff has full access to a plethora of legal remedies, including the filing of a criminal action for contempt, both direct and indirect, to enforce compliance with the court’s order.
There are many ways to assail a writ of replevin issued by the court, but that topic is for another article. Right now, let us allow one broken-hearted plaintiff to bask in the fact that he or she is able to recover his prized pet through the remedy of a writ of replevin. After all, the lover’s war has not yet ended, and as they say, hell hath not fury like a lover scorned (and his or her dog taken by replevin).
About Nicolas and De Vega Law Offices
If you need assistance in civil or other criminal law-related issues, we can help you. Nicolas and de Vega Law Offices is a full-service law firm in the Philippines. You may visit us at the 16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, 1605 Pasig City, Metro Manila, Philippines. You may also call us at +632 84706126, +632 84706130, +632 84016392 or e-mail us at [email protected]. Visit our website www.ndvlaw.com.