ASOCIACIONES: CONCEPTO Y NOTAS CARÁCTERÍSTICAS

The provisional remedy in virtue of which a plaintiff or other party may, at the commencement of the action or at any time thereafter, have the property of the adverse party taken into the custody of the court as security for the satisfaction of any judgment that may be recovered. [Davao Light v CA (1991)]

Purposes

(1) To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment.

(2) To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected. [PCIB v. Alejandro (year)]

A.1 GROUNDS FOR ISSUANCE

[Rule 57, Sec. 1]

There are only specific situations where preliminary attachment may issue. The grounds are EXCLUSIVE:

(1) Action for recovery of a specified amount of money or damages, except moral and exemplary,

(a) On a cause of action arising from law, contract, quasi-contract, delict, or quasi-delict

(b) Against a party who is:

(i) about to depart from the Philippines

(ii) with intent to defraud his creditors;

(2) Action for money or property, embezzled or fraudulently misapplied or converted to his own use by either:

(a) A public officer;

(b) An officer of a corporation;

(c) An attorney, factor, broker, agent, or clerk, in the course of his employment as such; or

(d) Any other person in a fiduciary capacity, or for a willful violation of duty;

(3) Action to recover the possession of property unjustly or fraudulently taken, detained or converted,

(a) When the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person;

Note: The rule makes no distinction between real and personal property [Riano]

(4) 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;

Note: The delivery of counterfeit money or knowingly issuing a bounced check are considered as grounds under this rule [Riano]

(5) Action against a party who:

(a) has removed or disposed of his property, or is about to do so,

(b) with intent to defraud his creditors (6) Action against a party who:

(a) Does not reside and is not found in the Philippines; or

(b) On whom summons may be served by publication.

Note: The persons on whom summons may be served by publication are:

(a) Residents defendants whose identity or whose whereabouts are unknown [Rule 14, Sec. 14]

151 (b) Resident defendants who are

temporarily out of the country [Rule 14, Sec. 16]

A.2 REQUISITES FOR ISSUANCE

(1) The case must be any of those where preliminary attachment is proper (Sec. 1, Rule 57)

(2) Applicant must file a motion, whether ex parte or with notice and hearing

(3) Applicant must file an affidavit showing the required facts

(4) Applicant must post a bond executed to adverse party

A writ of preliminary attachment is too harsh a provisional remedy to be issued based on mere abstractions of fraud. Rather, the rules require that for the writ to issue, there must be a recitation of clear and concrete factual circumstances manifesting that the debtor practiced fraud upon the creditor at the time of the execution of their agreement in that said debtor had a preconceived plan or intention not to pay the creditor. [Equitable v.

Special Steel (2012)]

A.3 ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT

When Applied For

A preliminary attachment may be applied for (1) At the commencement of the action; or (2) At any time before the entry of judgment.

Who may apply

It may be applied for by the plaintiff or any proper party (including a defendant who filed a counterclaim, cross-claim, or a third party complaint).

Methods to Procure Preliminary Attachment

(1) Writ may be prayed for in the complaint itself providing the allegations warranting its issuance

(2) May be issued pursuant to a separate motion for attachment whenever the writ is not prayed for in the original complaint Three Stages in the Grant

(1) The court issues the order granting the application

(2) Writ of attachment issues pursuant to the order granting the writ

(3) The writ is implemented

Note: For the initial two stages, it is not necessary that jurisdiction over person of defendant be first obtained. However, once implementation of writ commences, court must have acquired jurisdiction over the defendant for without such jurisdiction, the court has no power or authority to act

Issuance of the Order

(1) The order may be issued either:

(a) Ex parte (service of summons to defendant required)

(b) Or upon motion with notice and hearing

(2) The order is issued by the court in which the action is pending or the CA, or the SC Contents of the Order

(1) It must require the sheriff to attach so much of the property of the party against whom it is issued as may be sufficient to satisfy applicant’s demand

(a) Property must be within the Philippines

(b) And it must not be exempt from execution

(2) It shall contain an amount for the attachment bond:

(a) The amount sufficient to satisfy the applicant’s demand, or

(b) The value of the property to be attached as stated by applicant

152

A.3 AFFIDAVIT AND BOND

[Rule 57, Sec. 3 and 4]

For the writ to issue, the applicant must submit an affidavit and post bond. The affidavit and bond required must be duly filed with the clerk before order issues

Contents of the Affidavit The affidavit must establish that:

(1) A sufficient cause of action exists;

(2) The case is one of those mentioned in Sec.

1 (Grounds for Issuance);

(3) There is no other sufficient security for the claim sought to be enforced by action; and

(4) The amount due to applicant or possession of which he is entitled to recover is as much as the sum for which the order is granted above all legal counterclaims

Applicant’s Bond

The party applying for the order must give a bond executed to the adverse party

(1) Amount is fixed by the court in its order granting the issuance of the writ

(2) Conditioned that, if the court shall finally adjudge that applicant was not entitled to the writ, the bond will pay:

(a) All costs which may be adjudged to adverse party and

(b) All damages which he may sustain by reason of attachment

The bond shall only be applied to all damages sustained due to the attachment. It cannot answer for those that do not arise by reason of the attachment [Riano].

A.4 RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS

General Rule: A writ of attachment may be issued ex parte even before the summons is served upon the defendant but a writ may

not be implemented until jurisdiction over the person is acquired by service of summons.

Otherwise, the implementation is null and void. [Riano]

Exceptions to Contemporaneous Service of Summons: [Rule 57, Sec. 5]

(1) Summons could not be served personally or by substituted service despite diligent efforts, or

(2) Defendant is a resident of the Philippines temporarily absent therefrom, or

(3) Defendant is a non-resident, or (4) The action is in rem or quasi in rem.

A.5 MANNER OF ATTACHING PROPERTY

[Rule 57, Sec. 5]

The sheriff enforcing the writ shall attach only so much of the property in the Philippines of the adverse party not exempt from execution as may be sufficient to satisfy the applicant’s demand, unless

(1) Party against whom writ is issued makes a deposit with the court from which the writ is issued, or

(2) He gives a counter-bond executed to the applicant

Attachment of specific kinds of property [Rule 57, Sec. 7]

(1) Real property, or growing crops thereon, or any interest therein

(a) File with the Registry of Deeds:

(i) A copy of the order together with a description of the property; and (ii) A notice that the property is

attached

(b) The registrar of deeds must index attachments in the names of the applicant, adverse party, or person by whom the property is held or in whose name it stands in the records (c) If attachment is not claimed on the

entire area of land, description sufficiently accurate for identification

153 of such shall be included in the registration

(2) Personal property capable of manual delivery

(a) Sheriff Issues a corresponding receipt therefor

(b) Sheriff takes it and safely keeps it in his custody

(3) Stocks or Shares, or an Interest therein, of any corporation or company

(a) Leave a copy of the writ and a notice stating that these properties are attached in pursuance of such writ (b) Leave these documents with the

president, or managing agent thereof (4) Debts, credits, bank deposits, financial

interest, royalties, commissions and other personal property not capable of manual delivery

(a) Leave a copy of the writ and a notice that the debts owing, credits, and other personal property are attached in pursuance of such writ

(b) Leave these documents with:

(i) The person owing such debts, or (ii) Having in his possession or under

his control, such credits or other personal property, or

(iii) With his agent

(5) The interest of the party against whom attachment is issued in property belonging to the estate of decedent, whether as heir, legatee, or devisee (a) By service of a copy of the writ, and

notice that said interest is attached (b) Service is made to:

(i) The executor, or administrator, or (ii) Other personal representative of

the decedent

(c) Copy of the writ and notice:

(i) Shall be filed with the clerk in which said estate is being settled, and

(ii) Served upon the heir, legatee, or devisee concerned

Attachment of property in custodia legis These may be attached by:

(1) Filing a copy of the writ of attachment with the proper court or quasi-judicial agency

(2) Serving a notice of attachment upon the custodian of the property [Rule 57, Sec.

7]

A previously attached property may also be subsequently attached. But the first attachment shall have priority over subsequent attachments. [Riano]

A.6 PROCEEDINGS WHERE ATTACHED PROPERTY IS CLAIMED BY THIRD PERSON

A third person who has a claim to the property attached may avail of the following remedies:

(1) File terceria or third-party claim (Rule 57, Sec. 14)

o A third-party claim may be filed with the sheriff while he has possession of the properties levied upon, this being the only time fixed for the purpose o The claimant makes an affidavit of

his title or right to possession, stating the grounds of such right or title. The affidavit must be served upon the sheriff

o Substantial identical procedure as in terceria in Rule 39, Sec. 16

(2) File independent action to recover property; or

(3) File motion for intervention

o Available only before judgment is rendered

154

A.7 DISCHARGE OF ATTACHMENT AND COUNTER-BOND

After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf, may move for the discharge of the attachment wholly or in part on the security given.

Ways of Discharging Attachment (1) Counterbond under Sec. 12

(2) Motion for Discharge under Sec. 13 Grounds for Discharge

(1) Debtor has posted a counterbond or has made the requisite cash deposit (Sec. 12) (2) Attachment was improperly or irregularly

issued (Sec. 13)

(a) As where there was no ground for attachment, or

(b) The affidavit and/or bond filed are defective or insufficient (Sec. 3) (3) Judgment is rendered against attaching

creditor (Sec. 19)

(4) Attachment is excessive, but the discharge shall be limited to the excess (Sec. 13)

(5) Property attached is exempt from execution

Note: There is a difference between the bond for issuance of writ and bond for lifting the writ

(1) Bond for issuance of writ (Sec. 4) – This is for damages by reason of the issuance of the writ

(2) Bond for lifting of writ (Sec. 5 and 12) – This is to secure the payment of the judgment to be recovered

Only the defendant or party whose property is attached may move for its lifting. If the attachment is proper, the discharge should be by counterbond under Sec. 12 (KO Glass v.

Valenzuela)

Effect of Dissolution on Plaintiff’s Attachment Bond

(1) Dissolution of preliminary attachment upon security given, or a showing if its irregular issuance, does not operate to discharge the sureties on the attachment bond

(2) That bond is executed to adverse party conditioned that the applicant will pay all the costs which may be adjudged to adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that applicant was not entitled thereto (Sec.

4)

(3) Until that determination is made, as to applicant’s entitlement to attachment, his bond must stand and cannot be withdrawn

A.8 SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED

[Rule 57, Sec. 15]

Procedure

(1) Pay to judgment obligee the proceeds of sale of perishable property

(2) If there is any balance that remains due, sell property as may be necessary to satisfy the balance if enough remains in the sheriff or those of the clerk

(3) Collection of property of garnishee and proceeds paid to judgment oblige without need of prior permission to file action but may be enforced in the same action

(4) Return must be made within 10 days from receipt of writ

B. PRELIMINARY INJUNCTION

In document Facultad de Ciencias del Trabajo. Grado en Relaciones Laborales y Recursos Humanos. (página 48-52)