file:cvpro_part_2_ie.htm

Replevin

1. Steps in the Issuance and Implementation of a Writ of
Replevin

1.1 A party praying for the recovery of
possession of a personal property files with the court at the commencement of the
action or before answer in application for a writ of replevin.380

To accompany the application is the affidavit
which should state that:

(1) that the applicant is the owner of the
property claimed, particularly describing it, or is entitled to the possession
thereof;

(2) 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;

(3) 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

(4) the actual market value of the property.

2. Notes

(1) The applicant of a writ of replevin need not
be the owner for it is enough if he has a right to possess it.381

(2) Replevin cannot be availed of if the property
is in custodia legis as where it is under attachment or was seized under
a search warant382 except:

a. when the seizure is illegal;383 and

b. where there is reason to believe that the
seizure will not anymore be followed by the filing of the criminal action in
court or there are conflicting claims.384

3. The defendant is entitled to the return of the
property taken under a writ of replevin if the following requisites are met:

(1) S/he posts a redelivery bond and

(2) S/he furnishes the plaintiff of a copy of the
undertaking within five (5) days from taking and

(3) the bond is sufficient and in proper form.385