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Enforcement of writ of preliminary attachment must be preceded by or simultaneously accompanied by service of summons, copy or complaint, application and affidavits for the attachment and the bond upon the adverse party; BUT the requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served despite diligent efforts, or the defendant is a resident of the Philippines temporarily absent therefrom, or the defendant is a non-resident of the Phils or the action is in rem or quasi in rem.

Manner of Attaching Property (Real or Personal)

a. Real property, growing crops, interest therein - Order and Notice to Register of Deeds and Occupant or his agent within the province;

b. Personal property capable of manual delivery – sheriff to take and safely keep it, then issue a receipt;

c. Stocks, shares – writ and notice to president or managing agent;

d. Debts, credits, bank deposits, royalties, commissions, personal property incapable of manual delivery – writ and notice to debtor or person in control thereof.

e. Interest in estate of deceased – writ and notice to executor/administrator, clerk of court where estate being settled, and heir/devisee/legatee;

f. Property in custodial egis – writ to the court/agency and notice to custodian

Where property attached may be sold a. Hearing and notice

b. Property perishable or interests of all may be subserved by sale c. Sale by public auction

d. Proceeds deposited in court

When preliminary attachment is discharged

a. Adverse party posts a counterbond or makes requisite cash deposit - if attachment to be discharged is with respect to particular property, counterbond or deposit shall be equal to the value of the property as determined by the court; in all other cases, amount of counterbond should be equal to the amount fixed in the order of attachment.

CASH DEPOSIT OR COUNTERBOND SHALL SECURE THE PAYMENT OF ANY JUDGMENT THAT ATTACHING PARTY MAY RECOVER

b. Applicant’s bond is insufficient or sureties fail to justify;

c. Attachment was improperly (eg. Writ of attachment not based on Rule 57 Section 1) or irregularly (eg. Without previous or contemporaneous service of summons) issued;

d. Property attached is exempt from execution;

e. Judgment is rendered against attaching party;

f. Attachment is excessive – discharge is with respect to the excess Application for discharge, where filed

Application for discharge may only be filed with the court where the action is pending may be filed even before enforcement of the writ so long as there has been an order of attachment.

Third Party Claimant:

When third party claimant makes affidavit of title or right to possession over property and serves it upon sheriff while he still has possession of attached property and a copy upon the attaching party, sheriff is not bound to keep property under attachment unless applicant on demand of sheriff files a bond approved by court to indemnify third party claimant in sum not less than value of property levied upon (in case of disagreement as to value, court shall determine). Claim against said bond must be made within 120 days from filing (Rule 57 Sec 14).

Third party claimant can vindicate right to attached property in same or separate action; attaching party can also claim damages against third party

who filed a frivolous or spurious claim in same or separate action (Rule 57 Sec 14).

Satisfaction of judgment from attached property in following manner a. Proceeds of sales of perishable or other properties

b. If there is a balance, sell real or personal properties (attached) in sheriff’s hand or with clerk of court

c. If there is a balance, collect garnished amounts

d. If there is a balance after (a) + (b) + (c) less expenses of proceedings upon judgment, ordinary execution.

When to apply for damages against the attachment bond:

a. Before trial;

b. Before appeal is perfected;

c. Before judgment becomes executory;

d. In the appellate court for damages pending appeal, before judgment becomes executory.

Executory judgment

When judgment becomes executory, sureties on counterbond to lift attachment are charged and can be held liable for the amount of judgment and cost upon notice and summary hearing. There is no need to first execute judgment against the judgment obligor before proceeding against sureties.

Claims for damages

Claims for damages cannot be subject of independent action except:

a. When principal case is dismissed by the trial court for lack of jurisdiction without giving the claiming party opportunity to prove claim for damages;

b. When damages sustained by a third person not a party to the action.

*Nasser v. CA 191 SCRA 783

A verified complaint stating the facts required to be stated in the affidavit is sufficient and a separate affidavit need not be executed.

*Davao Light v CA 204 SCRA 343

Prior or contemporaneous service of summons is not necessary for the validity of the ISSUANCE of writ of attachment.

*Onate v. Abrogar 241 SCRA 659

Prior or contemporaneous service of summons is not necessary for the validity of the ENFORCEMENT of a writ of attachment.

*Uy v CA 215 SCRA 859

The trial court may validly issue a writ of preliminary attachment even if the case is on appeal. The trial court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated on appeal.

*Adlawan v Torres 233 SCRA 645

Mortgage of property does not amount to removal/disposal so as to come within the purview of Sec 1 (e) Rule 57

*Carpio v Macadaeg 9 SCRA 552

Mere removal or disposal of property does not justify an attachment. There must be a showing of intent to defraud defendant’s creditors before the writ of attachment may issue.

*Calderon v IAC 155 SCRA 531

The dissolution of a writ of attachment by virtue of the filing of a counterbond by the defendant does not dissolve the applicant’s bond and the same may be proceeded against by the defendant.

*Uy v. CA 191 SCRA 275

Where the sheriff attaches a property claimed by a third person, such person may institute a separate action to vindicate his right. The rule that property in custody of the law may not be interfered with another court applies only in cases where the property belongs to the defendant or one in which he has an interest.

*PerlaCompania v Ramolete 203 SCRA 487

In order to bind the garnishee on a writ of garnishment, previous service of summons is not required, only service upon him of the writ of garnishment is needed.

*Olib v Pastoral G.R. No. 81120 (August 20, 1990)

Where the main action is appealed, the attachment which may have been issued as an incident of that action is also considered appealed and so also removed from the jurisdiction of the court a quo.