CAPÍTULO II. ESTRATEGIAS DEL PLAN OPERATIVO DE MARKETING
X. DIRECCIÓN Y GESTIÓN DE SERVICIOS DE SALUD
Rule 57 does not provide any lifetime for a writ of preliminary attachment unlike a writ of execution (See: Roque vs. CA, 93 SCRA 540). What the law provides are enforcing the writ without delay and making sheriff’s return thereon without delay.
Preliminary attachment shall be discharged in any of the following instances: 1. property attached is exempt from execution, hence, it is also exempt from preliminary attachment (Sections 2 and 5, Rule 57);
2. applicant has made cash deposit or filed counter bond in court (Section 12, Rule 57);
3. attachment was improperly or irregularly issued or enforced (Section 13, Rule 57);
4. attachment bond is insufficient (Section 13, Rule 57); 5. attachment affidavit is defective (Section 13, Rule 57);
6. attachment is excessive, but discharge is limited to the excess (Section 13, Rule 57); and
7. judgment in the main case is rendered against the attaching party (Section 19, Rule 57)
When the preliminary attachment is issued upon a ground which is at the same time the applicant’s cause of action: ie., an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought, the only way it can be dissolved is by a counter-bond. (FCY Const., Group Inc. vs. CA, 324 SCRA 270)
The merits of the complaint are not triable in a motion to discharge an attachment. (CBTC vs. CA, 197 SCRA 663)
WHAT IS PRELIMINARY ATTACHMENT
1. It is a provisional remedy issued upon order of the court where the action is pending to levy upon the properties of the defendant therein, the same to be
Tan v Adre, 450 SCRA 145
861
Reyes v Lim, 408 SCRA 560
held thereafter by the sheriff as security for the satisfaction of whatever judgment might be rendered in favor of the attaching creditor.
2. It can also extend to property of the defendant in the hands of 3rd persons
or money owed by 3rd persons to the defendant. This is also known as
garnishment.
3. If judgment has become final and executory, there is a final attachment which is also known as Levy on Execution
4. It can be availed of at any time before entry of judgment.
D I S T I N C T I O N S B E T W E E N P R E L I M I N A R Y AT TA C H M E N T A N D GARNISHMENT
1. In Preliminary Attachment there are two parties, the plaintiff or proper party and the defendant, while in Garnishment, there is an additional party in the person of the garnishee. In the former, property is actually seized and a lien is created thereon, while in the latter, there is no actual seizure.
GROUNDS FOR ATTACHMENT
1. Action for recovery of money or damages other than moral / exemplary, on a cause of action that arise from law, contract, quasi – contract, delict, or quasi- delict against a party who is about to depart from the Philippines with intent to defraud creditors.
1.1 It is required that the movant be able to show that the defendant is about to depart from the Philippines with intent to defraud creditors. 863
1.2 It cannot issued when the amount of money or damages is not specified. 864
2. Action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, an officer of a corporation, or an attorney, factor, broker, agent or clerk in the course of his employment as such, or by any person in a fiduciary capacity, or for willful violation of such duty.
K.O. Glass Construction Co. Inc. v. Valenzuela, 116 SCRA 563
863
Peregrina v Panis, 133 SCRA 71
2.1 Examples are when an officer of a corporation who has control of its funds will utilize the same for his personal use or when a person appropriates the entire property knowing that a portion thereof does not belong to him.
3. Action to recover possession of property unjustly or fraudulently taken, detained or converted 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 authorized person.
3.1 The property referred to may be either real or personal property.
3.2 Distinguishing it from replevin: the object is to attach real or personal property belonging to the defendant to secure satisfaction of his judgment for recovery, while in replevin, the object of the movant is the recovery of his own property.
4. Action against a party guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought or in the performance thereof.
4.1 The fraud should be committed either upon contracting the debt or incurring the obligation sued upon or in the performance thereof. A debt is fraudulently contracted if at the time of contracting it, the debtor has a preconceived plan or intention not to pay. 865
5. Action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud creditors.
5.1 Mere removal or disposition, by itself, is not ground for the issuance of a writ of preliminary attachment, notwithstanding the insolvency of the defendant or the absence of security for the satisfaction of any judgment is alleged against the defendant. 866
5.2 Where fraudulent disposal is put in issue, the parties should be given the opportunity to prove their claims, or at the very least, the defendant should be given the chance to show that he has not been disposing of his property in fraud of creditors. 867
6. Action against a party who does not reside and is not found in the Philippines or on whom summons may be served by publication. 868
FCY Construction Group Incorporated v Court of Appeals, 324 SCRA 270
865
Peoples Bank and Trust Company v Syvel’s Incorporated, 164 SCRA 247
866
Adlawan v. Torres, 233 SCRA 645
867
Supra, Section 1, Rule 57
HOW APPLIED FOR
1. Generally, by motion or is incorporated in the complaint, accompanied by an affidavit, containing the following: (a) It is executed by the applicant / or some person who is aware or personally knows the facts (b) A sufficient cause of action exists (c) That a ground/s as stated in Section 1 exists (d) There is no other sufficient security for the claim sought to be enforced by the action (e) The amount due the applicant or value of the property that he is entitled to recover, is as much as the sum for which the Order is granted, above all legal counterclaims 869
1.1 An ordinary creditor appointed as administratrix of the estate of the deceased cannot file a petition for preliminary attachment as that would constitute him as a preferred creditor. 870
2. A bond must then be executed to the adverse party in the amount fixed by the court, conditioned that the latter will pay all costs which may be adjudged and all damages sustained by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto. 871
WHEN ISSUED / BY WHOM
1. Either ex parte or on motion with notice and hearing, by the court in which action is pending, by the Court of Appeals or the Supreme Court and must require the Sheriff to attach so much of the property in the Philippines of the party against whom it is issued not exempt from execution as may be sufficient to satisfy the claim unless the other party makes a deposit or gives a bond in an amount equal to that fixed in the order, exclusive of costs.
1.1 Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions. 872
2. It is issued ex-parte when the ground is justified further by the fact that the defendant might abscond or dispose of his property before the writ is issued. It can take place even before he is summoned but note that it cannot be enforced unless it is preceded or contemporaneously accompanied by service of summons, together with complaint, application for attachment, affidavit, bond, order and the writ itself.
Supra, Section 3, Rule 57
869
Gruenberg v Court of Appeals, 138 SCRA 471
870
Supra, Section 4, Rule 57
871
Supra, Section 2, Rule 57
2.1 This is the Prior or Contemporaneous Rule.
2.2 Note that an Alias Summons belatedly filed cannot be deemed to have cured the fatal defect in the enforcement of the writ of preliminary attachment. 873
2.3 The prior or contemporaneous rule does not apply when: (a) Summons could not be served personally or by substituted service despite diligent efforts (b) Defendant is a resident but temporarily out of the PhiIippines (c) Defendant is a non-resident of the Philippines (d) It is an action in rem or quasi in rem
BY WHOM / HOW ENFORCED
1. By the sheriff, without delay and with all reasonable diligence
1.1 Note that Rule 57 does not provide any lifetime for a writ of preliminary attachment unlike a writ of execution. 874 What the law provides for are the enforcement of the writ without delay and making sheriff’s return thereon without delay.
2. He may attach only such property not exempt from execution, as may be sufficient to satisfy the demand unless the defendant makes a deposit or gives a counter bond in an amount equal to the bond fixed by the court or to the value of the property attached.875
2.1 Note that the attachment shall proceed nevertheless until there have been proceedings undertaken to discharge the attachment. If found to be insufficient / or is not filed, a new order of attachment may be applied for. 876
3. Attachment should be in accordance with the following:
(a) If real property, it requires the filing with the Office of the Register of Deeds of a copy of the order together with notice that property or interest therein is attached.
(b) If personal property capable of manual delivery taking it and safely keeping it in custody after issuance of proper receipt.
(c) If stocks / shares / interest in companies, by leaving with the president or managing agent a copy of the writ and notice.
Mangila v Court of Appeals, 387 SCRA 162
873
Roque v Court of Appeals, 93 SCRA 540
874
Supra, Section 5, Rule 57
875
Supra, Section 12, Rule 57
(d) If debts, credits, bank deposits and other like personal properties not capable of manual delivery – leaving with such persons owing debt, holding credits or in possession a copy of the writ and notice.
(e) If interest is in the estate of a decedent, by virtue of his being an heir, legatee, or devisee, by serving the writ / notice on executor or administrator. (f) If in custodia legis – copy of writ is filed if the proper court or quasi-judicial agency and notice served on the custodian of the property. 877
3.1 Effect of attachment of debts, credits and similar personal property – persons who have them are liable to the applicant for the amount of such credits until the attachment is discharged, judgment is satisfied or debts are paid 878
3.2 Effect if on property belonging the estate of the decedent, it will not impair the powers of the executor / administrator or representative – BUT they shall report the attachment to the court when any petition for distribution is filed – and in the order made upon such petition – the property may be awarded to the heir / legatee / devisee , but the property attached shall be delivered to the sheriff, subject to the claim of the heir, legatee, devisee or person claiming under him. 879
3.3 There can also be an examination of the listed persons to determine if there are properties in their possession that may be attached. 880
4. Sheriff shall also make a return without delay, containing a full statement of his proceedings under the writ and a complete inventory of property attached, together with a copy of a counter-bond if one has been filed, furnishing copies thereof on the applicant. 881
5. Property is to be held and disposed of in the following manner: 5.1 If judgment is recovered by the attaching party
(a) Paying to obligee proceeds of all sales of perishable property or others sold pursuant to order of the court as shall be necessary to satisfy the judgment. (b) If there is a balance, selling so much of the real or personal property as may be necessary to satisfy the balance, if enough for that purpose, remains in
Supra, Section 7, Rule 57
877
Supra, Section 8, Rule 57
878
Supra, Section 9, Rule 57
879
Supra, Section 10, Rule 57
880
Supra, Section 6, Rule 57
the hands of the sheriff or clerk of court. Note that there can be an EARLY SALE if it is made to appear to the court in which the action is pending that the property attached is perishable, or that the interest of all the parties to the action will be subserved by the sale of the properties at public auction, the proceeds to be deposited with the court to abide the judgment. 882
(c) Collecting from all persons having in their possession credits belonging to the obligor or debts due him
(d) If there be a balance, he proceeds to collect as upon ordinary execution. If there be a surplus, it must be returned.
(e) If judgment becomes executory, the surety/ies shall become charged on the counter-bond and bound to pay the judgment obligee upon demand, the amount due on the judgment, which amount can be recovered after notice and summary hearing in the same action. 883
(f) If money was deposited in lieu of a bond, it is applied under direction of the Court and if judgment is against attaching party, the whole sum deposited is refunded. 884
A Report or Return of all proceedings must be filed with the court and copies furnished all parties. 885
5.2 If judgment is for adverse party –
(a) All proceeds of sales or money collected by the sheriff and property attached shall be delivered to the party whose properties were attached and the order of attachment discharged.
(b) Claim for damages before trial, perfection of appeal, or judgment becomes executory, with due notice to the attaching party and surety setting forth the facts showing his right to damages in instances where there is improper, irregular or excessive attachment, are to be awarded after hearing and is to be included in the judgment in the main case.
(c) If the judgment favorable to him is rendered by the appellate court, he must claim the damages during the pendency of the appeal by filing the application in the appellate court, before the judgment becomes executory. The
Supra, Section 11, Rule 57
882
Supra, Section 17, Rule 57
883
Supra, Section 18, Rule 57
884
Supra, Section 15, Rule 57
appellate court may allow the application to be heard and decided by the trial court.
(d) Nothing, likewise, prevents the party against whom attachment is issued from recovering in the same action the damages awarded to him from any property of the attaching party not exempt from execution should the bond or deposit be insufficient. 886
WHAT ARE THE REMEDIES OF A PARTY WHOSE PROPERTIES ARE ATTACHED
1. Discharge the attachment by making a cash deposit or counter bond. 887
Note that bond may be subject to recovery by attaching party;
1.1 A motion to discharge / dissolve is not allowed if the preliminary attachment is issued on a ground which is at the same time the applicant’s cause of action as that is tantamount to a trial on the merits. Example: action for money, property embezzled, party guilty of fraud in incurring the obligation
2. Discharge or set aside the attachment on the ground that it was improperly issued or irregularly enforced, or bond is insufficient or what has been attached is excessive, the discharge is only for the excess. 888
3. Claim for damages on account of improper, irregular, or excessive attachment. 889
WHAT HAPPENS IF PROPERTY IS CLAIMED BY A 3RD PERSON
1. Claim is to be initiated by affidavit.
1.1 Upon filing, the sheriff not under obligation to keep the property, unless attaching party files a bond.
1.2 No claim for damages for the taking or keeping of the property may be filed / enforced against the bond unless the action is filed within 120 days from date of the filing of the bond. 890
Supra, Section 20, Rule 57
886
Supra, Section 12, Rule 57
887
Supra, Section 13, Rule 57
888
Supra, Section 20, Rule 57
889
Supra, Section 14, Rule 57