RULE 57 - ATTACHMENT

PART ONE
BASICS OF ALL PROVISIONAL REMEDIES

• Ancillary – cannot stand alone.

• Provisional – never permanent.
• Special remedy that should be used sparingly only when fully justified
• A harsh remedy - CONSTRUED STRICTLY IN FAVOR OF DEFENDANT.
• “However, it should be resorted to only when necessary and as a last remedy because it exposes
the debtor to humiliation and annoyance. It must be granted only on concrete and specific grounds
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and not merely on general averments quoting the words of the rules. Since attachment is harsh,
12

extraordinary, and summary in nature, the rules on the application of a writ of attachment must be
13

strictly construed in favor of the defendant.” WATERCRAFT VENTURE CORPORATION, v. WOLFE;

September 9, 2015 G.R. No. 181721
ATTACHMENT

• What is it?
• Adlawan v.Tomol, 184 SCRA 31
• A writ of preliminary attachment is a provisional remedy issued upon order of the court where an
action is pending to be levied upon the property or properties of the defendant therein, the same to
be held thereafter by the Sheriff as security for the satisfaction of whatever judgment might be
secured in said action by the attaching creditor against the defendant.
• The provisional remedy of attachment is available in order that the defendant may not dispose
of his property attached, and thus secure the satisfaction of any judgment that may be
secured by plaintiff from defendant.
PURPOSE OF ATTACHMENT

• 1st. --- SECURITY FOR JUDGMENT (primary purpose)

• Adlawan / Chemphil Export and Import Corp. v. CA, 251 SCRA 257
• Gruenberg v. CA, 138 SCRA 471 (*Attachment is intended as security only for the judgment, not for other
claims. )
• 2nd --- allows court to obtain jurisdiction over property of defendant who cannot be personally served
with summons.
• Citizens Surety and Insurance Co. v. Melencio-Herrera – 38 SCRA 369
JBL Reyes: "... the Court could not validly acquire jurisdiction on a non-appearing defendant, absent a personal
service of summons within the forum... The proper recourse for a creditor in the same situation as petitioner is to
locate properties, real or personal, of the resident defendant debtor with unknown address and cause them to be
attached under Rule 57, Section 1 (f), in which case, the attachment converts the action into a proceeding in rem or
quasi in rem and the summons by publication may then accordingly be deemed valid and effective."
WHEN CAN ATTACHMENT BE APPLIED FOR
/ ISSUED?
• When is attachment available? Two things to remember: issuance and effect
• ISSUANCE -- When can an attachment be applied for and granted/ISSUED?
• Attachment can be applied for and granted at any time at or after the
commencement of an action. --- the filing of the complaint. Can be EX PARTE
See Davao Light and Power Co. v. Court of Appeals, 204 SCRA 343

Q: Why allow ex parte issuance, even before summons?

A: Relative ease of disposing of property and escaping execution
 WHEN CAN ATTACHMENT HAVE BINDING EFFECT
ON THE DEFENDANT/HIS PROPERTY?
• Sec. 5 -- No levy on attachment pursuant to the writ issued under section 2 hereof shall be enforced
unless it is preceded, or contemporaneously accompanied, by service of summons =
• Requires Acquisition of jurisdiction over defendant - SUMMONS
• Sievert v. Court of Appeals, G.R. No. 84034, Dec. 22, 1988, 168 SCRA 692 (1988) ***
• “The critical time which must be Identified is, rather, when the trial court acquires authority under law to act
coercively against the defendant or his property in a proceeding in attachment. We believe and so hold that critical
time is the time of the vesting of jurisdiction in the court over the person of the defendant in the main case..”

• Note: Court can act, but not coercively, until summons or voluntary appearance.
• Torres v. Satsatin, 605 SCRA 453 (2009) - The subsequent service of summons does not confer a retroactive
acquisition of jurisdiction over her person because the law does not allow for retroactivity of a belated service.
LACK OF PRIOR OR CONTEMPORANEOUS
SUMMONS
• Can attachment be implemented without summons, and then such defect be
cured by subsequent summons?
• Torres v. Satsatin, 605 SCRA 453 (2009) ***
• NO. The subsequent service of summons does not confer a retroactive acquisition of
jurisdiction over her person because the law does not allow for retroactivity of a belated
service.

• Lack of summons means that the implementation of the attachment is void, and therefore
cannot be ratified or its defect cured.
GROUNDS

(a) Recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of
action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to
depart from the Philippines with intent to defraud his creditors.

(b) In an action for money or property embezzled or fraudulently misapplied or converted to his
own use by a public officer or officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the
course of his employment as such, or by any other person in a fiduciary capacity, or for a willful
violation of duty.

(c) In any action to recover the possession of property unjustly or fraudulently taken, detained or
converted, when the property, or any part thereof, has been concealed, removed, or disposed to
prevent its being found or taken by the applicant or an authorized person.
GROUNDS CONTINUED

(d) In an action against a party who has been guilty of a fraud in contracting the debt
or incurring the obligation upon which the action is brought, or in the performance
thereof.
(e) In an action against a party who has removed or disposed of his property, or is about
to do so, with intent to defraud his creditors.
(f) In an action against a party who does not reside and is not found in the Philippines, or
on whom summons may be served by publication. (Sec. 15, Rule 14)
FRAUD IS THE THEME

• K.O. Glass Const. Co., Inc. v. Valenzuela, 116 SCRA 563

• -needs to show “intent to defraud creditors”
• See also Watercraft Venture Corporation, v. Wolfe; September 9, 2015 G.R. No. 181721

• Olsen and Co. v. Olsen, 48 Phil. 238 –

• civil fraud sufficient

• Aboitiz v. Cotabato Bus Co., 105 SCRA 88 –

• Intent to defraud not shown; Insolvency itself is not a ground.

• Carpio v. Macadaeg, G.R. No. 17797, November 29, 1963, SCRA 552- ***
• Mere disposal or removal not sufficient, must be with intent to defraud.

• Spouses Tanchan v. Allied Banking Corporation, G.R. No. 164510, November 25, 2005 ***
• Mere general allegation of fraud not sufficient, esp. against corporate officer or surety.
GARNISHMENT

• Pertains to assets that are credits or receivables – attaching the interest of the defendant in
an obligation to him.
• Perla Compania de Seguros, Inc. v. Ramolete, 203 SCRA 487 ***– garnishment (Sec. 8)
• “Garnishment has been defined as a species of attachment for reaching any property or credits
pertaining or payable to a judgment debtor. ”
• “In legal contemplation, it is a forced novation by the substitution of creditors….. Through service of the
writ of garnishment, the garnishee becomes a "virtual party" to, or a "forced intervenor" in, the case
and the trial court thereby acquires jurisdiction to bind him to compliance with all orders and
processes of the trial court with a view to the complete satisfaction of the judgment of the court ”
– CAUTION!!
• Garnishee is not a party to action. No need to serve summons on him.
PROCEDURAL REQUIREMENTS –
AFFIDAVIT AND BOND
• AFFIDAVIT:
(1) sufficient cause of action exists,
(2) that the case is one of those mentioned in section 1 hereof,
(3) that there is no other sufficient security for the claim sought to be enforced by the action, and
(4) that the amount due to the applicant, or the value of the property the possession of which he is entitled to
recover, is as much as the sum for which the order is granted above all legal counterclaims.
The affidavit, and the bond required by the next succeeding section, must be duly filed with the court before the order issues.“
Affidavit should state particular facts, not merely general statements.
• BOND:
• APPLICANT’S BOND will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the
attachment
• Differentiate from other bonds encountered in rule. (ie. Counterbond)
MANNER OF IMPLEMENTING ATTACHMENT

• Who should implement the writ?

• Sheriff
• What should be attached?
• “…only so much of the property in the Philippines of the party against whom the writ is issued, not exempt from
execution, as may be sufficient to satisfy the applicant’s demand.. .“
• When?
• Upon service of summons, and copy of the complaint, the application for attachment, the applicant’s affidavit and
bond, and the order and writ of attachment
• Compliance with all other procedural requirements (affidavit and bond)
• How?
• See Sec. 7, 8 and 9.
DISCHARGING/LIFTING THE ATTACHMENT

See Torres v. Satsatin (supra)

1. By filing counterbond (sec. 12) – cash deposit or surety bond (NOT property
deposit/bond)
What should the counterbond secure? → “the payment of any judgment that the
attaching party may recover in the action.”
- See Leelin Marketing Corp. v. C&S Agro Development Co., Inc., 121 SCRA 725
2. By MOTION objecting on grounds of impropriety or irregularity of the issuance of the writ,
or insufficiency of applicant’s bond (Sec. 13)
Is Certiorari R65 an option? ---- NO. Must file a motion first.
DISCHARGING ….

• Effects of counterbond:
• Upon approval, the writ is lifted. Motion to lift based on impropriety of the attachment can no longer be raised.
• Mindanao Savings and Loan Assoc. vs. Court of Appeals, 172 SCRA 480
• But See also Calderon v. IAC, 155 SCRA 531 –

• Is there a conflict here between these two cases? How to reconcile?

• Mindanao savings - motion to discharge a writ of attachment which has already been discharged by
counterbond is not proper.
• Calderon – Applicant’s bond still covers damages suffered by defendant due to the attachment, even if a counterbond is
already filed.

• In other words, counterbond is not a waiver of the right to raise the impropriety of the attachment, but only
bars a motion to lift the attachment (which is already lifted by the counterbond).
MOTION TO LIFT/DISCHARGE BASED ON IMPROPRIETY IN THE
ISSUANCE OF THE WRIT OF ATTACHMENT.

• When can it be filed? > before or after levy or even after the release of the attached
property.
• On what grounds?
• improperly or irregularly issued or enforced, or that the bond is insufficient; or that the
attachment is excessive.
Note: Court may ask the applicant to cure the defect or insufficiency. (i.e. bigger/new bond, reducing
properties attached, etc.)
Note: “When the ground for the issuance of the writ is also the core of the complaint, the
question of whether the plaintiff was entitled to the writ can only be determined after, not before, a
full-blown trial on the merits of the case. So motions on this ground may be denied.”
WHEN ATTACHED PROPERTY CLAIMED BY A THIRD PERSON.
SEC. 14

• Three remedies:
1. Third party claim (Terceria) – Affidavit establishing 3Ps ownership/claim over the
attached property.
>Sheriff shall not be compelled to keep property in his possession if a Terceria is filed.
>Unless applicant files another bond to answer for damage to the 3rd Party.
2. Intervention – 3P intervenes in the present action
3. Separate Action – 3P files a separate action to reclaim the property.
Whats the best remedy?
• Manila Herald Publishing v. Ramos, 88 Phil. 94
CLAIMING AGAINST THE COUNTERBOND

• Requirements;
• If applicant secures final and executory judgment in his favor
• Execution against defendant is unsatisfied
• Demand upon surety
• Notice to surety and summary hearing

• See Leelin Marketing Corp. v. C&S Agro Development Co., Inc., 121 SCRA 725
• Sec. 17
CLAIMING DAMAGES AGAINST THE APPLICANT’S
BOND
• What can be claimed – Damages due to the improper, irregular or excessive attachment.
• When – before trial is completed, before appeal is perfected, or before judgment
becomes executory.
• Where – trial court or appellate court
• Requirements – Notice to parties and sureties; and Hearing.
* Damages can be claimed against other property of the applicant if bond is insufficient.
➢ Can a losing party claim damages due to improper, irregular or excessive attachment?
➢ Yes!