POTATO NOTES

PRELIMINARY ATTACHMENT (RULE 57)

A. Attachment defined.
Attachment is a juridical institution which has for its purpose to secure the
outcome of the trial, that is the satisfaction of the pecuniary obligation contracted by a
person or believed to be contracted by hin; by virtue of which at the commencement of
the action or at any time before entry of judgement, a plaintiff or any proper party may
have the property of the adverse party attached as security for the satisfaction of any
judgement that may be recovered. ( De Guzman v. Catolico 65 Phil 260)
B. Purpose of attachment.
1. To Seize the property of the debtor in advance of final judgement and to hold it
for purposes of satisfying the said judgement or;
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 services of
summons on the creditor cannot be effected. (Mabanag v. Galemore)
C. Chief Purpose of attachment.
The chief purpose served by this remedy is
1.To secure a contingent lien on defendant's property until plaintiff can, through
appropriate proceedings , obtain a judgement and have such property applied to its
satisfaction; Or
2. To make some provision for unsecured debts in cases where the means of satisfaction
thereof are liable to be removed beyond the jurisdiction or improperly disposed of or
concealed or otherwise placed beyond the reach of creditors. (Spouses Salgado V. CA, GR
No. L-55381)
D. Levy of Attachment defined.
Levy of attachment is the service upon the defendant a copy of plaintiff's affidavit
and bond and of the order of attachment. ( Reinsurance Company of the Orient Inc. Vs.
Barcelona . R-32027)
E. Proceeding in Attachment is In Rem and In Personam
A proceeding in attachment is in rem where the defendant does not appear and in
personam where he appears in action. (Banco Espanol v. Palanca, 37 Phil 921)
F. Nature and Scope of Attachment
Attachment, as a provisional remedy, is purely a statutory one. It does not exist
unless expressly granted by the statute. It is therefore not available except in those cases
where the statutes expressly permits. (US v. Namit, 38 Phil 926)
G. Stages in the issuance of the writ
FIRST STAGE: The court issues the order granting the application.
SECOND STAGE: The writ of attachment is issued pursuant to the order granting
the writ.
THIRD STAGE: The Writ is implemented.
H. Rule on the issuance of a writ of attachment
The Rule on the issuance of a writ of attachment must be construed strictly in
favor of the defendant. (Gruenberg v. Court of appeals) It is therefore the duty of the
court, before issuing the writ , to ensure that all the requisites of the law have been
complied with ; other wise, the judge acts in excess of its jurisdiction and the writ so
issued shall be null and void. (Salas v. Adil. Gr no. L-46009)
I. When to apply and by Whom.
WHEN: At the commencement of the action or at any time before entry of
judgment.
BY WHOM: Plaintiff or any proper party
J. Grounds upon which attachment may issue.
1. In an action for the recovery of a specified amount of money or damages , other
than moral and exemplary , on a cause of action arising from law, contract, quasi
contract , delict or quasi-delict agains a party who is about to depart from the Philippines
with intent to defraud his creditors.
2. In an action for money or property embezzled or fraudulently misapplied or
converted to his own use by a public officer or 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 a violation of a duty.
3. In an action to recover the 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.
4. In 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 or in performance
thereof
5. In an action against a party who has removed or disposed of his property, or is
about to do so, with intent to defraud his creditors.
6. In an action against a party who does not reside and is not found in the
Philippines , or on whom summons may be served by publication.
K. How Order of attachment is issued:
1. Ex-Parte
2. Upon Motion with notice and hearing by the court in which the action is
pending, or by the Court of appeals or of the Supreme Court.
L. Who Can Enforce the order of attachment.
1. Sheriff of the Court
2. Chief of Police deputized as sheriff.
M. Remedy of a party against whom writ is issued.
Such party shall make deposit or give 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 provided for in section
2 of this rule.
N. Requisites for the issuance of the Writ
1. Affidavit of the Applicant , or of some other persons who personally knows the
facts , that a sufficient cause of action exists,
2. Bond
O. Condition of the applicant's Bond
That the applicant will pay all the costs which may be adjudged to the adverse
party and all the damages which he may sustain by reason of the attachment, if the court
shall finally adjudge that the applicant was not entitled thereto.
P. Attachment of Credits.
All persons having in their possession or under their control any credits or other
similar personal property belonging to the party against who attachment is issued shall
be liable to the applicant for the amount of such credits, other similar personal property
until the attachment is discharged , or any judgement recovered by him is satisfied ,
unless such property is delivered or transferred to the clerk , sheriff or other proper
officer of the court issuing the attachment. (National Bank v. Olutanga lumber company,
54 Phil 546)
Q. Terceria
Terceria is a remedy by third party claimant. It is done by executing an affidavit
of his title or right of possession over the property seized and serving the same upon the
officer making the levy and the judgement creditor.

D. Special Reminders
Although a writ of preliminary attachment may be issued ex- parte or even before
service of summons on the defendant, it cannot however be implemented until
the court has acquired jurisdiction over the person of the defendant.
If a property has been levied upon by virtue of a writ preliminary attachment,
it becomes one under custodia legis and a subsequent extra-judicial foreclosure
of said property by a third party mortgage does not affect the lien created by the
attachment. (Consolidated Bank and Trust Corporation v. Intermediate Appellate
Court)
A foreign corporation duly licensed to do business in the Philippines is not a non
resident, hence its property here may not be attached on the mere ground that
it is a non resident. ( Claude Neon lights Inc. V. Philippine Advertising Corp. 57
Phil 607)
Insolvency of the defendant debtor is not a ground for the issuance of a writ of
preliminary attachment. ( Aboitiz and Co. v. Provincial Sheriff L-35990)
Properties exempt from execution are also exempt from attachment.
After execution is unsatisfied against the judgement debtor, the judgement
creditor may bring an action against a garnishee upon whom notice was
served under an attachment issued in the action before judgement. Notice for
appearance of the garnishee and requiring him to answer is not necessary before
bringing the action. (Tee Bi and Co. v. Chartered bank of Indiam 41 Phil 819).