PROVISIONAL REMEDIES

FANTASTIC 5 REMEDIES

PRELIMINARY ATTACHMENT (RULE 57)

PRELIMINARY INJUNCTION (RULE 58)
RECEIVERSHIP (RULE 59)
REPLEVIN (RULE 60)
SUPPORT PENDENTE LITE (RULE 61)
The term Provisional means temporary, preliminary or tentative.
Nature of PROVREM
1. interim
2. ancilliary
3. only provisional (temporary measures)
What
1.
2.
3.

are other PROVREM not found in the Rules of Court?

TPO RA 9262
HUMAN SECURITY ACT OF 2007
AMLA 2001 (Freeze Order)

Purpose of PROVREM (1996 BAR)

a. to preserve or protect their rights or interest while main action is
pending
b. to secure the judgment;
c. to preserve the status quo; or
d. to preserve the subject matter of the action
Court with jurisdiction over PROVREM
- the court which has jurisdiction over the main action.
- The authority to grant a provisional remedy is not the sole
prerogative of superior courts. Even inferior courts may grant
provisional remedy in an action pending with it and within its
jurisdiction.
- Under BP 129, as amended, the jurisdiction of the MTC includes the
grant of provisional remedies in proper cases

PRELIMINARY ATTACHMENT
RULE 57
NATURE OF PRELIMINARY ATTACHMENT
- it is a remedy which is purely STATUTORY in respect of which the
law requires strict construction of the provisions granting it.
- Attachment is purely statutory remedy. It cannot exist without a
statute granting it.
- There is no separate action called preliminary attachment. It is not
a distinct proceeding and is availed of during the pendency of a
principal action because it is a mere provisional remedy.
- Attachment is in the nature of a proceeding QUASI IN REM.
- While attachment is an action in rem or quasi in rem, this
classification is true only when the defendant does not appear in
the action.
WHO MAY AVAIL OF PRELIMINARY ATTACHMENT
- the plaintiff or any proper party
- Any proper party may refer to a defendant who
counterclaim, cross-claim or thirtd- party complaint.

files

PURPOSE OF PRELIMINARY ATTACHMENT

- designed to seize the property of the debtor before final judgment
and put the same in custodial egis even while the action is pending
for the satisfaction of a later judgment.
STAGE OF PROCEEDINGS WHEN PA MAY BE APPLIED FOR
a.)At the commencement of the action
b.)Any time before entry of judgment
- if not applied for at the commencement of the action, the
application may be made at any stage of the proceedings, even
after judgment but before its entry. The stage before the entry of
the judgment is the last opportunity to avail of the remedy. Under
Section 2 of Rule 36, the date of finality of the judgment or final
order shall be deemed to be the date of its entry. Hence, the
issuance of the writ may be applied for before the judgment
becomes final and executory.
KINDS OF ATTACHMENTS; DISTINCTIONS (BAR 1975, 1999;
2012)
3 types of attachments, to wit:
a. preliminary attachment (Bar 2012)
b. garnishment (Bar 2012)
c. levy on execution
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PRELIMINARY ATTACHMENT is one issued at the commencement of the

action or at any time 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.
GARNISHMENT is a kind of attachment in which the attaching party
seeks to subject to his claim either the property of the adverse party,
in the hands of a third person called the garnishee, or the money
which said third person owes the adverse party.
LEVY UPON EXECUTION is the process available after the judgment
has become executor 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.
GROUNDS FOR THE ISSUANCE OF A WRIT OF PRELIMINARY
ATTACHMENT
1. Recovery of a specified amount of money or damages
2. Action for Money or Property embezzled
3. Recovery of Property unjustly or fraudulently taken
4. Fraud in Contracting or performing an obligation
There are two kinds of fraud contemplated
CAUSANTE and DOLO INCIDENTE

here:

DOLO

Dolo Causante is the fraud used to induce another to enter into

a contract. It is the fraud employed in contracting an obligation
and renders a contract annullable or voidable
Dolo Incidente is the fraud employed by a party in the
fulfillment of his obligation or after the obligation has been
contracted. This kind of fraud only oblges the person employing
it to pay damages.
5. Removal or disposal of property with intent to defraud
ACTIONS AGAINST NON-RESIDENTS OR ON WHOM SUMMONS
MAY BE SERVED BY PUBLICAITON

As to non-residents, one purpose of the remedy of attachment is to

reach the property of an absent, non-resident defendant in an
action in personam, thus, dispensing with the need for acquiring
jurisdiction over his person. The attachment is intended to enable
the court to acquire jurisdiction over the res by converting the
action in personam to an action quasi in rem and thus, justifying
summons by publication and other modes of summons under
Section 15 of Rule 14 (extraterritorial service of summons(
When property located in the Philippines of a non resident, who at
the same time is outside the Philippines attached, the court
acquires jurisdiction over the res and in that event, the jurisdiction
over the person of said defendant is not essential .
thus, in actions in personam against residents temporarily out of
the Philippines, the court need not always attach the defendants
property in order to have authority to try the case. Where the
plaintiff seeks to attach the defendants property and to resort to
the concomitant service of summons by publication, the same must
be with prior leave, precisely because, if the sole purpose of the
attachment is for the court to acquire jurisdiction, the latter must
determine whether from the allegations in the complaint,
substituted service (to persons of suitable discretion at the
defendants residence or to a competent person in charge of his
office or regular place of business)

BAR QUESTIONS AND SUGGESTED ANSWERS

1.) BAR 1981
Y is a stockholder of a local corporation. Y owns 20% of the
shares of the said corporation. Y defaults on a manufacturaing
contract with Z. Z sues for specific performance and damages
and, on the ground that Y is fleeing from the country to avoid
his creditors, seeks to attach 20% of a parcel of land that
belongs to the corporation.
Can Z secure such an attachment granting the averments of
his petition are sufficient? Reasons.
Suggested Answer:
The attachment cannot be obtained. The property sought to be
attached is actually the property of the corporation which is not
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the defendant in the case. The corporation has a personality

separate and distinct from that of its stockholders.
2.) BAR 1982
Edward filed a complaint against Liza for accounting of the
money received by her as administratix of Edwards hacienda. In
his complaint, Edward prayed for preliminary attachment,
alleging that Liza was about to depart from the Philippines.
Attached to the complaint was an affidavit executed by Marilyn
to the effect that Liza told her that she, Liza was planning to
leave for Singapore in a few days. If you were the judge, would
you grant the prayer for preliminary attachment? Why?
Suggested Answer:
I would not grant the prayer for preliminary attachment. The
application should show that the defendants departure from the
Philippines must be with the corresponding intent to defraud the
creditors. This fact was not alleged in the application for the
issuance of preliminary attachment.
3.) BAR 1983
Daniel Chan owns a house and lot at Forbes Park, Makati, where
his wife and children reside. He is the CEO of various family
corporations where he owns 20% of the respective capital
stocks. These family corporation owe several banks the total
sum of P2.5 billion, with Chan as a solidary co-debtor.
After Chan has carefully manipulated the finances of the family
corporations and diverted their funds to his account in a Swiss
bank, he flees from the Philippines and now resides at 127 Rue
Duphine, Zurich, Switzerland. The banks concerned now retains
the services of Atty. Ramon Castillo for the purpose of filing a
suit in the Philippines against Daniel Chan on his obligations as a
solidary co-debtor on the loans of the family corporations. One
of the procedural problems facing Atty. Castillo is the method of
effecting a valid service of summons upon Daniel Chan, now
residing in Switzerland, to enable the Philippine courts to acquire
jurisdiction over his person. Describe the remedies and
procedure, and the supporting grounds thereof that Atty. Castillo

should follow as would enable him to effect a valid service of

summons on Daniel Chan.
Suggested Answer:
Atty. Castillo may file an action against Daniel Chan for collection
of sum of money with an application for a writ of preliminary
attachment if has properties in the Philippines. Since the action
is one in personam, the jurisdiction over the person of the
defendant is required but this jurisdiction cannot be obtained
against one who is no longer a resident of the Philippines in an
action in personam. The writ of attachment is required in order
to convert the action in personam into an action in rem. In this
kind of action, jurisdiction over the person of the defendant is
not required. What is required is jurisdiction over the res which
could be obtained by attachment. Summons by publication or
other modes of extraterritorial service of summons would then
be served upon him with leave of court following procedure
under Section 15 of Rule 14, ROC.
REQUISITES FOR THE ISSUANCE OF AN ORDER OF
PRELIMINARY ATTACHMENT; AFFIDAVIT AND BOND REQUIRED
-

An order of attachment shall be granted only by the filing of the

requisite AFFIDAVIT and BOND

CONTENTS OF AFFIDAVIT
1. the affidavit should contain the following:
a. that a sufficient cause of action exists;
b. that the case is one of those mentioned in Section 1 of Rule
57
c. that there is no other sufficient security for the claim sought
to be enforced by the action; and
d. that the amount due to the applicant, or the value of the
property the possession of which he is entitled to recover, is
as much for which the order is granted above all legal
counterclaims (Section 3, Rule 57, ROC)
-

The affidavit should allege all the matters what the rule requires it
to contain.

CONDITION OF APPLICANTS BOND

1. The bond executed in favor of the adverse party is conditioned

upon payment by the party applying for an order of attachment
of all costs which the adverse may be adjudged as entitled to
and all damages which he may sustain by reason of the
attachment.
2. The damages, which may be claimed against the bond, refers
only to damages sustained because of or by reason of the
attachment.
ISSUANCE OF THE ORDER: EX PARTE ISSUANCE OR UPON
MOTION WITH NOTICE AND HEARING (bar 2005, 2001, 1996,
1993, 1991)
1. The order of preliminary attachment may be granted upon
motion and notice and hearing by the court in which the action is
pending, and may even be issued by the CA or the SC
2. It may also be issued ex parte and even before summons is
served upon the defendant. However, the writ may not be
enforced and validly implemented unless preceded or
simultaneously accompanied by service of summons, copy of the
complaint, application for attachment, order of attachment and
the attachment bond.
CONTENTS OF THE ORDER OF ATTACHMENT
-

the order 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 applicants demand, unless such party makes a deposit or gives
a bond in an amount equal to that fixed in the order, which may be
the amount sufficient to satisfy the applicants demand or the value
of the property to be attached as stated by the applicant, exclusive
of
costs.

PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS

1. The Sheriff is not allowed to may a levy on attachment is such
levy is not preceded or contemporaneously accompanied, by the
service on the defendant within the Philippines, of the following:
a. service of summons;
b. copy of the complaint;
c. application for attachment;
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d. applicants affidavit and bond; and

e. order and writ of attachment
2. it is apparent that the service mentioned in the immediately
preceding paragraph is necessary to acquire jurisdiction over the
defendant before the writ is implemented and to comply with the due
process requirements of the law.
STAGES IN THE GRANT OF PRELIMINARY ATTACHMENT
For a better understanding of the rule on prior or contemporaneous
service of summons, jurisprudence explains that the grant of the
provisional remedy of attachment has three stages:
1.)
2.)
3.)

the
the
the
the

court issues the order granting the application;

writ of attachment issues pursuant to the order granting
writ; and
writ is implemented.

Jurisdiction over the PERSON OF THE DEFENDANT is not necessary in

the first two stages. In the 3 rd stage, when the writ is to be
implemented, the court must have acquired jurisdiction over the
person of the defendant. Without such jurisidiction having been
obtained, the court has no power and authority to act in any manner
against the defendant.
WHEN THE REQUIREMENT OF PRIOR OR CONTEMPORANEOUS
SERVICE SHALL NOT APPLY
a.)
b.)
c.)
d.)
e.)

the summons could not be served personally despite diligent

efforts;
the summons could not be served by substituted service
despite diligent efforts;
the defendant is a resident of the Philippines temporarily
absent therefrom;
the defendant is a non-resident of the Philippines; and
the action is one in rem or quasi in rem

DUTIES OF THE SHERIFF

1. The Sheriff is required to proceed with the attachment without
delay and with all reasonable diligence UNLESS the party against

whom the writ is directed makes a deposit with the court from
which the writ is issued or gives a counter-bond.
2. The sheriff enforcing the writ is required to attach the property
subject of said writ to await the judgment in the case and its
execution.
3. The sheriff is also precluded from attaching any property exempt
from execution such as those enumerated in Section 13, Rule 39
of the ROC
4. After enforcing the writ, the sheriff must likewise without delay
make a return thereon to the court from which the writ is issued,
with a full statement of his proceedings under the writ and a
complete inventory of the property attached, together with any
counter-bond given by the party against whom attachment is
issued.