Preliminary Attachment Preliminary attachment defined

a. a provisional remedy

b. issued upon order of the court where the action is pending, c. to be levied upon the property of the defendant therein, d. the same to be held thereafter by the sheriff

e. as SECURITY for the satisfaction of a judgment in said action

f. in favor of the attaching creditor against the defendant. (Virata vs. Aquino, September 10, 1973)

Ancillary to principal proceeding

The attachment must fail if the suit itself cannot be maintained as the purpose of the writ can no longer be satisfied.

When the main action is appealed the attachment is also considered appealed, It cannot be the subject of an independent action (Olib vs. Pastoral, 188 SCRA 692 [1990]).

Writ of attachment may be issued ex parte

An order of attachment may be issued either ex parte or upon notice and hearing by the court in which the action is pending, or by the Court of Appeals or Supreme Court (Rule 57, Sec. 2). It may be issued ex parte because to require notice to the adverse party would defeat the purpose of attachment and enable the adverse party to abscond or dispose of the property

before the issuance of the writ (Mindanao Savings and Loan Association, Inc. vs. CA, 172 SCRA 480).

v Several writs may be issued at the same time to the sheriffs of the courts of different judicial

regions. (Sec. 2)

Attachment and garnishment distinguished

Garnishment is an attachment by which the plaintiff seeks to subject to his claim property of the defendant in the hands of a third person or money owed by such third person or garnishee to the defendant. The rules on attachment also apply to garnishment proceedings.

Attachment/Garnishment

Property is usually in the possession Property is in the possession of a of the party litigant. third party

Subject is real or personal property Subject is personal property, usually debts or security

(1) Preliminary Attachment (2) Garnishment (3) Levy on Execution

Issued at the commencement of the action or at anytime before entry of the judgment as security for the satisfaction of any judgment that may be recovered in the cases provided for by the rules. Here the court takes custody of the property of the party against whom the attachment is directed.

It is a kind of attachment in which the plaintiff seeks to subject either the property of the defendant in the hands of the third person called the

garnishee, to his claim or the

money in which said third person owes the defendant. Garnishment simply impounds the property in the possession of the garnishee and maintains the status quo until the main action is finally decided. Further, by means of garnishment, the plaintiff reaches credits belonging to the defendant and owing to him from a third person who is a stranger to the litigation.

Writ issued by the court after judgment by which the property of the judgment obligor is taken into the custody of the court before the sale of the property on execution for the satisfaction of a final judgment. It is a preliminary step to the sale on execution of the property of the judgment debtor

Garnishment of bank deposits does not violate the bank secrecy law (RA1405) because it does

not involve examination or inquiry into the deposit, but is merely to inform the court whether defendant has a deposit in the bank which may be garnished.

When garnishment order lifted. A garnishment order shall be lifted if it is established that: (a) the

party whose accounts have been garnished has posted a counterbond or has made the requisite cash deposit; (b) the order was improperly or irregularly issued as where there is no ground for garnishment or the affidavit and/or bond filed therefor are defective or insufficient; (c) the property attached is exempt from execution, hence exempt from preliminary attachment; or (d) the judgment is rendered against the attaching or garnishing creditor.

Discharge of attachment

1. Posting of counterbond (Sec. 12). Even before actual levy, seizure may be prevented also under a counterbond (Sec. 5).

2. Showing of improper or irregular issuance (Sec. 13).

3. Judgment rendered against attaching party dismissal of principal action (Sec. 19).

a. Grounds for issuance of writ of attachment Grounds for issuance (Rule 57, Sec. 1)

1. Action for recovery of specified amount 2. Action involving embezzled property

3. Action to recover property fraudulently taken

4. Action involving fraud in contracting or performing obligation

5. Action against party who has removed or disposed of property to defraud creditors

6. Action against non resident defendant

b. Requisites

Attachment bond (Rule 57, Sec.3)

An attachment bond is a pre requisite to the issuance of a writ of attachment. Until the attachment is discharged or lifted in accordance with law, the bond continues to be valid even when the PREMIUM IS NOT PAID.

c. Issuance and contents of order of attachment; affidavit and bond (Rule 57, Sec. 2) The order of attachment

may be issued either ex parte or upon motion with notice and hearing by the court in which the action is pending, or by the Court of Appeals or the Supreme Court. must require the sheriff of the court 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 applicant's demand,

EXCEPT if such party makes a DEPOSIT or gives a BOND in an amount equal to that fixed in the order. Amount may be (a) sufficient to satisfy the applicant's demand or (b) the value of the property to be attached as stated by the applicant, exclusive of costs.

Ex parte grant of the writ is allowed because it is possible that during the course of the hearing, the part against whom the writ is sought may dispose of his property or abscond before the writ is issued. (Filinvest Credit Corporation vs. Relova, G.R. No. L 50378, September 30, 1982)

Affidavit and Bond (Rule 57, Secs. 3 and 4)

1. The AFFIDAVIT to be executed by the applicant himself or some other person who personally knows the facts must show that:

a) There is a sufficient cause of action. The case is one of those mentioned in Rule 57, Sec. 1

b) There is no sufficient security for the claim sought to be enforced; and

c) The amount claimed in the action is as much as the sum for which the order is granted above all legal counterclaims;

2. The BOND must be executed to the adverse party in an amount fixed by the judge, not exceeding the applicants claim, conditioned that the latter will pay 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 was not entitled thereto.

d. Rule on prior or contemporaneous service of summons Prior or contemporaneous service of summons required

An ORDER of attachment may be granted ex parte. Its grant or denial rests upon the sound discretion of the court.

However, its ENFORCEMENT shall be preceded or contemporaneously accompanied by service of summons and copy of the complaint, order of attachment and bond posted by the applicant (Davao Light and Power Co., Inc. vs. CA, 204 SCRA 343 [1991]).

EXCEPTIONS TO PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS (Rule 57, Sec. 5) 1. Summons could not be served personally or by substituted service despite diligent efforts;

2. Defendant is a resident of the Philippines temporarily absent therefrom; 3. Defendant is a non resident of the Philippines; or

4. The action is in rem or quasi in rem.

e. Manner of attaching real and personal property; when property attached is claimed by third person

The sheriff enforcing the writ shall without attach only so much of the property of the adverse party not exempt from execution, as may be sufficient to satisfy the applicant's demand,

UNLESS the adverse party

(a) makes a DEPOSIT with the court from which the writ is issued, or

(b) gives a COUNTERBOND executed to the applicant, in an amount equal to the bond fixed by the court in the order of attachment or to the value of the property to be attached, exclusive of costs.

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, together with a copy of the complaint, the application for attachment, the applicant's affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines.

The rule on prior or contemporaneous service of summons shall apply, subject to the exceptions enumerated earlier. (Rule 57, Section 5)

Rule 57, Sec. 7. Attachment of real and personal property; recording thereof.

The sheriff executing the writ shall attach real and personal property in the following manner: