2. Marco Referencial
2.4 La interacción desde la cognición
Preliminary Attachment
1. A provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant therein, the same to be held by the sheriff as
security for the satisfaction of whatever judgment that might be secured in the said action by the attaching creditor against the defendant (Torres v Satsatin, GR No.166759, 2009).
2. It is a provisional remedy, auxiliary or incidental to the main action, whereby the debtor’s property capable of being taken under levy and execution is placed under custody of the law pending the determination of the cause, to secure the payment of any judgment that may be recovered therein (Davao Light & Power CO. v CA, GR No. 93262, 1991).
Who May Apply
The plaintiff or defendant who asserts a counterclaim, a cross-claim or a third-party claim may avail of the remedy.
When to apply for Preliminary Attachment:
1. At the commencement of the action or
2. At any time before entry of judgment.
KINDS OF ATTACHMENTS:
1. Preliminary Attachment – attach the property while the case is going on, before judgment, or at a commencement, as security for the satisfaction of any judgment that may be recovered
2. Garnishment – process in which money or goods in the hands of a third person which are due to the defendant, are attached by the plaintiff
3. Levy on execution or final attachment – a writ issued by the court after judgment by which the property of the judgment obligor is taken into the custody of the court
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for the satisfaction of a final judgment.
STAGES OF A PRELIMINARY ATTACHMENT:
1. Filing of the application for issuance of writ of preliminary attachment in the form of an affidavit.
2. Court issues the Order granting the application. The order fixes the amount of the attachment bond but does not yet require the sheriff to attach the property of the person against whom it is issued. Refer to Rule 57, Sec. 4.
3. The applicant must thereafter file the attachment Bond in the amount fixed by the court.
4. The court issues the Order of attachment, with the corresponding writ of attachment, requiring the sheriff to attach properties of the adverse party as may be sufficient to satisfy the applicant’s demand.
Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions.
5. The writ of attachment is enforced by the sheriff pursuant to Sec. 5 and 7 of Rule 57.
6. After enforcing the writ, the sheriff must make a Return thereon to the court from which the writ is issued.
Refer to Rule 57, Sec. 6.
Note: Jurisdiction over the person of the defendant is only required in the 5th stage.
Section 1: Grounds for Issuance Of Writ Of Attachment.
1. Recovery of specified amount of money and damages, except moral or exemplary, where party is about to depart from the Philippines, with intent to defraud creditors;
2. Action for money or property embezzled or for willful violation of duty by public officers, officers of corporation, agent, or fiduciary;
3. Recovery of possession of property (both real and personal) unjustly detained, when the property is concealed or disposed of to prevent its being found or taken;
4. Action against party guilty of fraud in contracting the debt or incurring the obligation or in the performance thereof;
5. Action against party who is concealing or disposing of property, or is about to do so, with intent to defraud creditors;
6. Action against party who is not a resident of the Philippines, and cannot be found therein or upon whom service by publication can be made.
Note: The grounds are exclusive.
REQUISITES FOR THE ISSUANCE OF AN ORDER OR WRIT OF PRELIMINARY ATTACHMENT:
1. The case must be any of those where Preliminary Attachment is proper as provided under Rule 57, Sec. 1.
2. The appellant must file a motion (ex parte or with notice and hearing).
3. The appellant must show by affidavit that:
a. A sufficient cause of action exists.
b. The case is one of those mentioned in Sec. 1 hereof.
c. There is no sufficient security for the claim sought to be enforced by the action.
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d. The amount claimed in the action or value of property the possession of which the plaintiff is entitled to recover, is as much as the sum for which the order is granted above all counterclaims. Refer to Rule 57, Sec. 3.
4. Applicant’s bond or attachment bond – The attaching party shall post a bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ, conditioned that the applicant 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, if the court shall finally adjudge that the applicant is not entitled thereto.
Refer to Rule 57, Sec. 4.
Note: The AFFIDAVIT and BOND must be duly filed with the court before the order issues.
ATTACHMENT LIEN
While the provision of Rule 57 are silent on the length of time within which an attachment lien shall continue to subsist after the rendition of a final judgment, jurisprudence dictates that the said lien continues until the debt is paid, or the sale is had under execution issued on the judgment or until the judgment is satisfied, or the attachment discharged or vacated in the same manner provided by law(Lim vs. Lazaro 3 July 1995).
EFFECT OF INCOMPLETE
ALLEGATIONS IN AFFIDAVIT
The affidavit filed therefor must contain all the allegations required in Sec. 3 of
this Rule. Failure to do so renders the writ totally defective, as the judge issuing the writ acts in excess of jurisdiction (Regalado, 10th Ed., citing K.O. Glass Construction Co., Inc. v Valenzuela, GR No.L-487856, 1982).
Section 2: Issuance and aContents of the Order of Attachment, Affidavit and Bond
An order of attachment may be issued by:
1. Exparteor
2. Maybegrantedupon
motionwithnoticeandhearingbythecou rtinwhichtheactionispending,orbytheC AorSC.
Note:
Itmustrequirethesheriffofthecourttoattach somuchofthepropertyinthePhilippinesofth epartyagainstwhomitisissued.
Property to be attached:
1.Must not be exempt fromexecution.
2.Must be sufficient to satisfy the applicant’s demand.
Unless such party makes a deposit or gives a bond as hereinafter provided in an amount equal to that fixed in the order,which may be the amount sufficient to satisfy the applicant’s demand or the value of the property to be attached as stated by the applicant,exclusive of costs.
Note: Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions.
Applicant’s bond or attachment bond The attaching party shall post a bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ,
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conditioned that the applicant 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, if the court shall finally adjudge that the applicant is not entitled thereto.
Rule on prior or Contemporaneous Service of Summons
General Rule:No levy on attachment shall be enforced unless it is preceded or contemporaneously accompanied by service of summons, together with:
1. A copy of the complaint, 2. Application for attachment, 3. Applicant’s affidavit,
4. Bond, 5. Order,
6. Writ of attachment,
on the defendant within the Philippines (Riguera 2013).
While the petition for a writ of preliminary attachment may be granted and the writ itself issued before the defendant is summoned, the writ of attachment cannot be implemented until jurisdiction over the person of the defendant is obtained.
(Onate vs. Abrogar 23 February 1995) The attachment of properties before the service of summons on the defendant is invalid, even though the court later acquires jurisdiction over the defendant.
At the very least, then, the writ of attachment must be served simultaneously with the service of summons before the writ may be enforced. (Onate vs. Abrogar 23 February 1995)
Exception:
1. The summons could not be served personally or by substituted service despite diligent efforts
2. The defendant is a resident of the Philippines Temporarily absent therefrom
3. Defendant is a Non-resident of the Philippines.
4. The action is in rem or quasi in rem.
Section 5: Manner of Attaching Real and Personal Property; When Property attached is claim by third person
Thesheriffenforcingthewritshall:
1. Without delay and with all reasonable diligence attach,
2. To await judgment and execution in the action,
3. Only so much of the property in the Philippines of the party against whom the writ is issued, 4. Not exempt from execution,as
may be sufficientto satisfy the applicant’sdemand.
Manner of Attachment:
1. Realproperty,orgrowingcropsthere on, oranyinteresttherein:
a. Byfilingwiththeregistryofde edsacopyoftheorderofattach ment,togetherwithadescrip tionofthepropertyattacheda nd noticethat it is attached,and
b. By
leavingacopyofsuchorder,de scription,andnoticewiththe occupantoftheproperty.
Note:
Eveniftherealpropertyisnotregisteredwitht heregister
ofdeeds,theattachmentmayberegisteredpu rsuanttoSec.113[d],PDNo.1529.
2. Personalpropertycapableofmanual delivery
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a. Bytakingandsafelykeepingit inhiscustody,
b. Afterissuance
ofcorrespondingreceiptther efor.
3. Stocksorsharesinacompany a. Byleavingwiththepresident
ormanagingagentthereof, b. Acopyofthewrit,and
n oticestatingthatthe stockorinterestofthepartya gainstwhomtheattachmenti sissuedisattachedinpursua ntofsuchwrit.
4. Debtsandcredits,andotherpersonal propertynotcapableofmanualdelive ry
Debtsand
credits,includingbankdeposits,fina ncialinterest,royalties,commission
sandother personal
propertynotcapableofmanualdelive ry,areattached:
a. Byleavingwiththepersonowi ngsuchdebts,orhavinginhis possessionorunderhiscontr ol,suchcreditsorotherperso nalproperty,orwithhisagent ,acopyofthewrit,andnoticet hatthedebtsowingbyhimtot hepartyagainstwhomattach mentisissued,andthecredit sandotherpersonalproperty inhispossession,orunderhi scontrol,belongingtosaidpa rty,areattachedinpursuanc eofthewrit.
4. Interestinestateofthedecedent a. Byservingtheexecutororad
ministratororotherpersonal representativeofthedeceden twithacopyofthewritandnot icethatsaidinterestisattach ed.
b. Acopyofthewritand
noticeshallalsobefiledinthe officeoftheclerkofthecourtin whichsaidestateisbeingsettl edandserveupontheheir,leg ateeordeviseeconcerned.
RemedyWhenWrit
ofAttachmentisImproperlyorIrregularly Enforced
Filea
motiontodischargetheattachmentbasedon Sec.13(Riguera2013,citingOnatevAbrogar, G.R.No.107303,1995).
Note:
Apropertyincustodialegismaybeattached.I nsuchcase:
1. Acopyofthewritofattachmentshallbefile dwith thepropercourtorquasi-judicialagency,and
2. Noticeoftheattachmentserveduponthec ustodianofsuchproperty(Riguera2013, citingSec.7).
Section 14: Proceedings where property is claimed by third person ThesameasthatinSec.16,Rule39;andSec.7 ,Rule 61.
Procedure:
1. The third-party shall makean affidavit showinghis titleto or right ofpossession overtheproperty.
2. Heshallservetheaffidavituponthelevyin
g officer,files
abondapprovedbythecourtto
indemnifythird-partyclaimant,notthesherifforofficer.
3. Amountofbondshouldbenotlessthanval ueofpropertyleviedon.The
sheriffshallNOTbeliablefordamagesifbo ndisfiled.
4. Aclaimfordamages forthetakingorkeeping
ofthepropertymaybeenforcedbythethir d-partyagainstthebond
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providedhefilesanactionwithin120days fromthefilingofthebond.
RemedyWhenThird-PartyClaimantisUnabletoRecoverthePro perty
Fileaseparateactiontorecover possession.
Remedy When Third-Party Claimant is Unable to Recover the Property
The remedy is to file a separate action to recover possession.
Note: Nothing shall prevent the third-party claimant from vindicating his claim to the property in the same or separate action. Refer to Rule 39, Sec. 16 (Riguera 2013).
Section 12: Discharge of Attachment and the Couner-bond.
Remedies Available to a Party against Whom a Writ Is Issued or Enforced
1. He may discharge a writ of attachment which has been enforced or prevent its enforcement altogether if:
a. He makes a cash deposit or files a counter-bond executed to the attaching party
b. With the clerk of court where the application is made, c. In an amount equal to that
fixed by the court in the order of attachment,
d. Exclusive of costs.
2. To quash the attachment based on the following grounds:
a. That it was improperly issued.(Sec. 13); or
b. That it was improperly enforced; or
c. That the bond is insufficient.(Sec. 3)
3. He may move to discharge because there was no ground for attachment. (Sec. 1)
4. He may move to discharge on the ground that the attachment is excessive, but the discharge shall be limited to the excess. (Sec. 13) 5. He may move to discharge on the
ground that the property attached is exempt from execution, hence exempt from preliminary attachment. (Secs. 2 and 5)
6. The judgment is rendered against the attaching creditor.(Sec.19 ) (Regalado 10th Ed.)
Section 20: Claim for Damages on Account of Improper, Irregular or Excessive Attachment.
An application for damages may be filed by a party against whom the attachment was issued on account of improper, irregular or excessive attachment.
Q: May damages be claimed by a party prejudiced by a wrongful attachment even if the judgment is adverse to him?
A: Yes, damages may be claimed by a party prejudiced by a wrongful attachment even if the judgment is adverse to him. This is authorized by the Rules. A claim, for damages may be made on account of improper, irregular or excessive attachment, which shall be heard with notice to the adverse party and his surety or sureties. (Javellana v. D.
O. Plaza Enterprises Inc., 32 SCRA 281) When to apply for damages against the attachment bond
1. Before trial;
2. Before appeal is perfected;
3. Before the judgment becomes executory;
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4. During the pendency of the appeal for damages sustained during such appeal, if the judgment of the appellate court is favorable to the party against whom the attachment was issued and before said judgment becomes executory.
ATTACHMENT BOND
COUNTER-BOND It is posted by the
attaching party or the applicant.
It is posted by the party against whom
attachment is issued.
The purpose of the applicant’s bond is to obtain a writ of