Sunday, July 19, 2015

Injunction; grounds for dissolution; sample motion to dissolve injunction

                                                              "x x x.


          THE DEFENDANTS, by counsel, respectfully state:

1.      On xxx the Court issued an ORDER granting Plaintiff’s motion for issuance of a Writ of Preliminary Injunction (under the same terms and conditions of the Temp0rary Restraining Orders [TROs], dated xxx).

1.1.           The TRO, dated xxx, imposed on the Plaintiff a TRO bond of P476, 000.00.

2.    To this very day, per the Record in the possession of the undersigned counsel for the Defendants (i.e., the Record of the Defendants turned over to him by the latter), the Plaintiff has failed to post the necessary PRELIMINARY INJUNCTION BOND.

2.1.          Nothing in the Record shows that the Plaintiff has posted a Preliminary Injunction Bond.

2.1.1.               NOTE:  A related earlier ORDER, xxx, per the Record turned over by the to the undersigned counsel, shows that the Counsel for the Plaintiff , as of such date, had allegedly posted a CASH BOND, per an alleged Official Receipt (OR) allegedly attached to the Record of the Court, for purposes of the TRO earlier issued on xxx.         At that time, the Preliminary Injunction agenda was still pending consideration and hearings before the Court.

2.1.2.              There is no showing in the Record of the case that the Defendants had been duly furnished copies of the alleged OR referred to in the said Order either personally or thru their former Counsel.

2.2.        Nothing in the Record shows that the Plaintiff has filed a “Motion To Approve Preliminary Injunction Bond”.

2.3.        Nothing in the Record shows that the Court has issued an ORDER approving a separate Preliminary Injunction Bond.

2.4.        Nothing in the Record shows that the issuing Surety Company or Bonding Company, if any, has qualified under the Accreditation/Qualification Requirements/Rules of the Supreme Court.

2.5.         Nothing in the Record shows that the Court has issued an ORDER approving the credentials, qualifications, and license to operate of such Surety Company or Bonding Company, if any.

3.    More specifically, nothing in the Record shows that the Court has issued a formal Writ of Preliminary Injunction to this very date.

4.    The aforecited Order, dated xxx, in effect, remains on inactive status (effectively on archived status) to this very date.

4.1.          For lack (or non-issuance) of a formal Writ of Preliminary Injunction, the said Order remains and ought to be UNENFORCEABLE.

4.2.        For lack of (i.e., failure to post) the mandatory Preliminary Injunction Bond, all the injunctive commands stated in the said Order against the Defendants remain and ought to remain UNENFORCEABLE.

5.     The Plaintiff relies on the said inactive (if not “effectively archived” Order) Order and on the unenforceable, unissued, and unbonded/unsecured  Preliminary Injunction issued thereunder:

5.1.          To unjustly paralyze and injure the administration, leadership and operations of the defendants, as the incumbent members and officers of the Board of Directors of the xxx Subdivision Homeowners Association, Inc. in actual control of the xxx Water Co., Inc. - affiliated water system, water facilities, and water connections serving the homeowners of the said village;

5.2.         To unjustly mislead the homeowners of the village that the Plaintiff is in good standing or has a legal basis to be the accredited/contracted Operator of the xxx  water system, facilities, and connections.

5.2.1.              Note: The 2005 xxx  board resolution granting to the Plaintiff the power to operate the water system, facilities, and connections of the village had been REVOKED in 2014.

5.3.         To unjustly cause huge demoralization, confusion, vexation, alarms and destructive disunity among the innocent homeowners of xxx and within the very leadership core of the Association.

6.    It is worthwhile to discuss hereinbelow the main provisions of RULE 58 (PRELIMINARY INJUNCTION) insofar as they may relevant and material to this Motion.

6.1.          Sec. 4 (b), Rule 58 (Verified application and bond for preliminary injunction or temporary restraining order) provides, inter alia, that “(u)nless exempted by the court, the applicant files with the court where the action or proceeding is pending, a bond executed to the party or person enjoined, in an amount to be fixed by the court, to the effect that the applicant will pay to such party or person all damages which he may sustain by reason of the injunction or temporary restraining order if the court should finally decide that the applicant was not entitled thereto.”

6.1.1.               The aforecited provision of Rule 56 further provides that “(u)pon approval of the requisite bond, a writ of preliminary injunction shall be issued.”

6.2.        Sec. 6, Rule 58 (Grounds for objection to, or for motion of dissolution of, injunction or restraining order) provides, inter alia, that “(t)he injunction or restraining order may also be denied, or, if granted, may be dissolved, on other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits. It may further be denied, or, if granted, may be dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such
damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order.  If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified”.

6.2.1.              In due time, if the Order, xxx, is not recalled and revoked, as prayed for hereinbelow, the Defendants shall (and hereby reserve the right to) file the necessary pleading to invoke their rights under the abovecited provision to DISSOLVE the Preliminary Injunction, for the protection of the peace, unity, orderliness, and general well-being and welfare of the homeowners of xxx, whom they are duty-bound to serve as the duly elected incumbent directors and officers of xxx.

6.3.        Sec. 7, Rule 58 (Service of copies of bonds; effect of disapproval of same) provides, inter alias, that “(t)he party filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy of such bond on the other party, who may except to the sufficiency of the bond, or of the surety or sureties thereon”.

6.3.1.              It further provides that “(i)f the applicant’s bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be dissolved.

WHEREFORE, in the interest of justice, it is respectfully prayed that, for the legal and factual reasons stated hereinabove:

1.      The ORDER, dated xxx, be RECALLED and REVOKED; and

2.    The grant of a Preliminary Injunction stated thereunder in favor of the Plaintiff be DISSOLVED.

FURTHER, the Defendants respectfully pray for such and other reliefs as may be deemed just and equitable in the premises.

          Xxx City, xxx, 2015.

Counsel for Defendants
Unit 15, Star Arcade, C. V. Starr Ave.
Philamlife Village, Las Pinas City 1740
Tel. Nos. 8725443 & 8462539

X x x.

X x x.”