Rule 57 - (1/5 MT) Provisional Remedies

Question 1

Purposes of Preliminary Attachment

Answer 1

1. secure satisfaction of judgment that may be rendered in favor of the claimant-applicant
2. acquire JD over the action by actual [or] constructive NOTICE of the property where personal service or substituted service of summons CANNOT be effected
3. to continue hearing a case even if the court does NOT actually serve the summons personally upon the defendant, especially when the defendant is NOT residing in the Phil & is not found in the Philippines at the time of the purported service of summons

Question 2

Knowledge Check: Kinds of Jurisdiction

Answer 2

1. JD over the sm
2. JD over the person of the defendant
3. JD over the res
4. JD over the issue

Question 3

knowledge check: situations where the court will have difficulty serving summons on the defendant

Answer 3

1. def’t outside Phil
2. def’t not residing in the Phil
3. def’t is not found in the Phil at the time of the commencement of the action, for the case to continue, the court has to acquire JD over the res

Question 4

Chinese borrowed money from you. You demand payment on due date you found that the Chinese has left to his country.

Can you file a case against him?
What is the effect if summons do not arrive to him?

Answer 4

An action for sum of money cannot prosper as service of summons in person is required for the court to acquire JD

If Chinese has properties, file a motion for PA in connection with the case so the action in persona converts to action quasi in rem thereby applying Rule 14 Sec. 17, file a motion asking for leave of court to serve summons by publication

GR: cannot summons by publication in action in persona
XPN: action in persona is converted to action in rem or action quasi in rem

[B]
It is irrelevant & immaterial whether the copy of the summons is received by the defendant for as long as the court acquires JD over the res by attachment, then the court may continue hearing the case

Question 5

Salient Characteristics of a Writ of PA

Answer 5

1. ancillary to main action
2. a provisional remedy
3. in the nature of a proceeding quasi in rem altho referred sometimes as action in rem
4. grant of PA is discretionary

[1, 2] - if case dismissed, so will it

Question 6

when is a writ of PA considered to be in the nature of a quasi in rem proceeding?

Answer 6

PA is considered a quasi in rem proceeding if;
- the def’t is personally served summons [or]
- the def’t personally appears during the hearing of the case

[but] there is still an application and issuance of the writ of PA like when the def’t is poised to dispose of his properties to defraud his creditors

Question 7

knowledge check: if your grant of PA is denied, what is your remedy?

Answer 7

Not appeal but Certiorari under Rule 65

Question 8

Who may apply for Writ of PA?

Answer 8

1. plaintiff
2. any other proper party (defendant w/ counterclaim, cross claim, or third-party complaint)

Question 9

Gal crashed to Gra’s car. Gra filed case due to Gal’s fault and demanded payment/compensation.

in Gal’s answer, he puts a compulsory counterclaim was because of Gra’s negligence & liable for damages. (not in the nature of permissive cc)

ccc: inter twinned with main cause of action

can he file a Preliminary Attachment

Answer 9

Yes

Question 10

You are filing a case against a non-resident defendant and it’s not found in the Philippines. You are filing a case against a foreigner who is already outside the Philippines at the time of the commencement of the action. So if only for the case to continue, what should you do?

Answer 10

apply for a writ of PA so that when the court grants the same, you may request by leave of court to service summons by publication and once served by publication, the court may proceed to continue the hearing of the case

Question 11

how is an action in persona converted in action in rem through the issuance of a writ of PA?

Answer 11

def’t does not actually participate during the proceedings, then writ of PA becomes an action in rem because in the main, the primary action is now the the property subject matter of litigation.

Question 12

how is an action in rem converted to action in quasi in rem?

Answer 12

ordinarily, the issuance of a PA is in the nature of action quasi in rem. It becomes an action in rem if & when the def’t is NOT personally served with summons & def’t does NOT voluntarily appear before the court.

Question 13

where there is a
- cause and reason, or
- compelling ground for issuance of PA,

then writ of PA is correctable by what?

Answer 13

search warrant.

In that context, the judge may be considered as having acted w/ great abuse of discretion amounting to lack or excess of JD

Question 14

remedy when Gra and Gal obtained a loan but Gal received nothing and the obligation fell due and now Tor is now filing a case against Gra and Gal.

what is the remedy in this common situation?

Answer 14

In Gal’s answer, on the ground that he did not receive any of the proceeds of the loan, he may interpose a cross-claim against Gra so that in the event of a judgment against them, then Gal can demand reimbursement from Gra

Question 15

ff > during pendency, Gal files cross-claim against Gra however Gra is disposing of his property w/ the end view that he may not be held ultimately liable to pay for the obligation owed to Tor or that Gal will pay for everything instead

what is the remedy

Answer 15

As the defendant, I can apply for writ of PA insofar as the cross-claim is concerned because Gra is disposing his assets to avoid being held liable

Question 16

Suppose that Tor files a case against Gal for sum of money but you have evidence that Gra is also liable for the obligation however he is quick to dispose of his property

what is your remedy?

Answer 16

apply for writ of PA as a defendant insofar as a third-party complaint is concerned such that

Question 17

When to apply for PA?

Answer 17

[commencement of action]
- incorporated in a verified complaint
- may be ex parte issuance of writ of PA

[any time before entry of judgment]
- issued while case is on appeal (issued by CA/SC)
- prior notice and hearing is required

Question 18

Juan filed a petition for certiorari on the ground that the court acted in grave abuse of discretion issuing a writ of PA against him when he has already received summons and no hearing or notice was given to him.

is his contention tenable?

Answer 18

Yes, his contention is tenable

GR: writ of PA requires prior notice & hearing before issuance if it is applied for after the filing of the complaint

XPN: application of writ embodied in the complaint require no prior notice & hearing.

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GR: The court issuing a PA ex parte as a rule, the implementation of the PA requires **prior or contemporaneous service of the;

• complaint,
• summons,
• application for issuance of writ of PA
• order of attachment
• affidavit & bond filed in court in support of the writ

where a PA is applied for in a complaint, the court may issue a PA even without prior hearing [and] notice

Question 19

Juan accused judge of gross negligence for granting a PA after a judgment has been rendered. is juan’s argument tenable?

Answer 19

No, so long as the judgment has not attained finality, then a PA can still be validly be had

Question 20

Juan appeal his case to the CA. Because of the lack of foresight of his counsel, he was only able to apply for writ of PA pending appeal. who will grant the writ? The trial court or the appellate court?

Answer 20

appellate court

Question 21

Kinds of Attachment

Answer 21

1. PA
2. Garnishment
3. Levy upon execution

Question 22

in Garnishiment, once garnished, can the plaintiff receive the property or claim from the garnishee of the adverse party by order of the sheriff?

Answer 22

No, the sheriff cannot order that the credit be paid to the plaintiff upon garnishment because it is only AFTER judgment against the judgment obligor has become final and executory that payment then is to be made.

Question 23

the adverse party in a garnishment argues that the order is improper as the garnishee did not receive a service of summons. is this tenable?

[b]
he further argues that the garnishee was not impleaded in the case as a co-defendant

[c]
the sheriff, in garnishment took the properties or the claim in a bank and brought it to court awating final jdugment. is this proper?

Answer 23

No, SoS is not required to bind the garnishee but it is enough that the garnishee is served with a copy of the writ of preliminary attachment

[b]
based on prevailing JP, insofar as garnishment is concerned, there is no actual need to implement 3rd persons in the action

[c]
No, this is untenable and improper of the court sheriff to do so. there is no need for the sheriff to take possession

Question 24

what is levy upon execution?

Answer 24

requires decision to attain finality

process employed (AFTER) judgment has become final and executory where the property of the Judgment obligor is set aside and taken into custody of the court for the sale of the property of the same for the satisfaction of the judgment

Question 25

GROUNDS for the issuance of the writ of PA

Answer 25

[1]
- action for recovery of SPECIFIED amount of money [or] damages
other than ~moral~ [and] ~exemplary~
- on a cause of action arising from; law, contract, quasi-contract, delict, quasi-delict
- against party who is about to depart from the Phil
- with intent to defraud his creditors

[2]
- action for MONEY [or] PROPERTY
- [emc] embezzled, fraudulently misapplied, converted
- by a Public Officer, Officer of a Corp, Atty, Factor, Broker, Agent, or Clerk, or any other person in a fiduciary capacity
- in the course of his employment or
- willful violation of duty

[3]
- action to RECOVER POSSESSION OF PROPERTY
- [tdc] unjustly or fraudulently taken, detained, or converted
- when property or part thereof has been
- [crd] concealed, removed, or disposed of
- to prevent its being found or taken by applicant or an authorized person

[4]
- action against party Guilty of FRAUD in contracting debt/obligation upon which the action is brought [or] performance thereof

[5]
- action against party who has REMOVED or DISPOSED of his property, [or]
- is about to do so
- with intent to defraud his creditors

[6]
- action against party who
- DOES NOT RESIDE, and NOT FOUND in the Phil, [or]
- whom summons may be served by PUBLICATION

[7]
- even if def’t in the case is actually residing in the Phil
- when the case allows service of summons via PUBLICATION

[8]
- another ground *other than def’t trying to dispose of his properties to defraud his creditors,
- then issuance is PA is justified but NOT on the ground that def’t is outside Phil but on the ground
- he is trying to dispose of his properties with INTENT to defraud his creditors

Question 26

in a case of LIBEL and in order to ensure satisfaction of judgment, can you validly file a PA?

Answer 26

No, as it does not fit any ground. Libel’s award is moral damages and cannot be quantified & such award is addressed to the discretion and judicial discretion of the court.

Question 27

Is there a way to validly apply a writ of PA in an action against a foreigner who has no intent to defraud his creditor? (1st ground not tenable)

Answer 27

Yes based on the last ground; against a defendant who does not reside or not found in the philippines at the time of the SoS

Question 28

distinguish ground 2 from the others

Answer 28

• not required party to remove or dispose or is about to remove or dispose (gr. 5)
• not required that they conceal, remove, dispose (gr. 3)

Question 29

on ground 3 “in an action to recover possession of property unjustly or fraudulently [tdc] taken, DETAINED, or CONVERTED, when property in whole or in part has been [cdr] CONCEALED, DISPOSED,or removed to prevent it being found or taken by the applicant or authorized person

[A]
suppose the order of attachment is granted, and the mountain bike is no longer to be foudn, how will you as sheriff attach?

[B]
suppose there the bike is still in possession of the adverse party? what is the appropriate remedy?

Answer 29

[A]
Since the actual property crd, then as the sheriff I should attach money or properties of the adverse party

[B]
No, under the 3rd ground, it is a sina quo non that the property or part thereof be crd the appropriate remedy is to file for a writ of REPLEVIN which is recovery of property that is unjustly taken & still in the custody of the adverse party.

Question 30

keywords on ground 4

Answer 30

• dolo causante (fraud in contracting the obligation)
• dolo incidente (fraud in the performance)

both of which is a ground for issuance of PA

Question 31

compare ground 3 & 5

Answer 31

[3]
- action is recovery of pssession of property
- property is unjustly & fraudulently taken, detained. converted,
- the property or part thereof is cdr
- to prevent its finding by applicant & authorized

[5]
- not specified action
- has cdr [or] about to cdr
- w/ INTENT to drfarud creditors

Question 32

Gra disposes properties because he needs money for his illnesses. he is indebted to Gal and Gra disposed of his properties to buy medicines.

which ground?

Answer 32

None as the disposition of his assets Must be coupled with intention of defrauding his creditors

mere insolvency is not a ground for issuance of PA

Question 33

your foreigner friend owes money to you and obligation fell due but left in the PHilippines because his VISA expired

(1)
as counsel how can you push the case forward

(2)
what is the effect

Answer 33

For the court to continue the case, apply for a writ of PA of his properties in Phil on ground 6

Once filed, motion for leave of court to summon via publication

(2)
to the effect that;
- court acquires JD over the res
- the action in persona converts to an action in rem or quasi in rem
- to the effect that the case can proceed even if the summons has not actually been received by the def’t

Question 34

ground 7 for PA > “There may be issuance of writ of PA, even if def’t is residing in Phil when the case allows service of summon by publication

under the rules, what are the 2 situations contemplated wherein the def’t resides in the philppines & there can be service of summons by publication

Answer 34

1. His identity or whereabouts are not known, then may be served via publication (individual or corp(?))
2. def’t residing in the Phil [but] is temporarily outside of the phil
   - at the time of commencement of action, or
   - at time of purported service of summons [CAVEAT: this is no longer the case because of PCIB v. Alejandro ruling]

Question 35

you were hit by a black car with plate number “XXX 6???”

what ground of will warrant writ of PA

Answer 35

ground 7 where the defendant is a resident & the case allows summons by publication

Question 36

Gal wanted to file a case against Gra and to ensure satisfaction of judgment he wants to apply for a writ of PA with the following facts

• it is a recovery of a specified amount of money
• CoA is based on law, contract, quasi-contract, delict, and quasi-delict
• about to depart Philippines
• residnt is vacationing in Japan

but you notice that it lacks the intent to defarud creditosr which is crucial for ground 1. What will you advice?

Answer 36

on ground 7, following the doctrine in PCIB v. Alejandro, effect SUBSTITUED SoS

Question 37

Gal filed case against Tre for colelction of unpaid loan. At the time of filing of case, Tre is a fil citizen and temporarily outside of Phil

rule on the matter

Answer 37

No, if the purpose of application of PA where def’t is a resident but outside of Phil is to acquire JD over the def’t then that is not enough reason to issue attachment

PCIB v. Alejandro, the SC held that [actions in personam] against residents outside of Phil temporarily, the court need not always attach the defendan’ts property in order to have the authority to try the case (unlike foreigners)

The 2nd situation of ground 7 does not justify issuance of writ of PA so as to attach the property of the def’t because service of summons may be had via SUBSTITUTED SoS

Question 38

REQUISITES for issuance of an order of PA

Answer 38

1. Filing of affidavits setting forth the ff:

• sufficient CoA exists
• ground is one of those mentioned in R57 S1
• no other sufficient security for the claim sought for in the action
• amount due the applicant or the value of the property taken, is as much as the sum for which the order is granted above all legal counterclaims

Question 39

Gal filed case for collection against Gra but the one who executed the affidavit applying for the writ is Ter.

Is this allowed?

Answer 39

Yes, the affidavit need not be executed by the applicant himself as the person who has actual or personal knowledge about the circumstances constituting the ground for the writ is important

Question 40

Gra obtained loan from Gal with a mortgage of a parcel of land.

Gra failed to pay leaving Gal an alternative option between a simple case for collection of unpaid loan or petition for foreclosure of real estate mortgage.

Gal files a simple case of collection of unpaid loan

Q: may he validly apply for issuance of PA?

Answer 40

GR: No, he cannot apply because the obligation of Gra has sufficient security which is the obligation is secured by a real estate mortgage in Gal’s favor

XPN: Even with a mortgage in Gal’s favor, considering the value of the mortgaged property is NOT sufficient to answer the principal loan [and] given Gra is already on th everge of disposing his other properties to defraud his creditors, then a writ of issuance may be validly be had

Question 41

what is an attachment bond vs. indemnity bond?

Answer 41

[AB]
- more or less the same value
- fixed by the court
- paid by applicant

[IB]
- Republic of Phil is exempted
- bond up where property attached is claimed by third persons

Question 42

Is the state required to put up an attachment bond? an indemnity bond?

Answer 42

The rule does not cover the State as in the case of Republic of Phil v. Maj. Carlos Garcia where the court ruled that the State as represented by the gov’t is exempt from filing an attachment bond on the theory that it is always SOLVENT (includes indemnity bond)

Question 43

Implementation/Execution of the writ of PA

GR:

Answer 43

GR: No attachment pursuant to the writ issued in section 2 shall be ENFORCED(not issued) unless it is preceded, or contemporaneously accompanied by
- service of summons
- copy of complaint
- application for attachment
- applican’ts affidavit [and] bond
- order & writ of attachment on the defendant

even if ISSUANCE (not execution) attachment is ex parte, before writ can be implemented/executed, it is sine qua non that those mentioned above be done

Question 44

Implementation of the writ of PA:

XPN:

Answer 44

the requirement of prior or contemporaneous service of summons shall not apply in the ff: cases

1. where summons could not be served personally despite diligent efforts
2. where summons could not be served by substituted service despite diligent effort
3. def’t is a resident but temporarily absent
4. def’t is a non-resident
5. the action is in rem [or] quasi in rem

Question 45

what is the manner of attaching REAL property and/or growing crops thereon

Answer 45

by filing with the RoD
- a copy of the order
- description of the property attached
- notice that it the property/interest is attached

leaving a copy to the occupant of the property
- of such order
- description
- notice

if proerty under [either] Land Registration Act (lra) [or] Property Registration Decree (PRD)
- notice shall contain a reference to the # of the certificate of title, voume, and page in the registration book where certificate is registered

Question 46

what is the manner of attaching PERSONAL property capable of manual deilvery

Answer 46

taking & keeping it in sheriff’s custody

Question 47

what is the manner of attaching STOCKS/SHARES

Answer 47

by leaving with the president [or] Managing agent, a copy of
- the writ
- the notice stating that the stock/interest is attached

Question 48

what is the manner of attaching DEBTS, CREDITS, or BANK DEPOSITS

Answer 48

leaving to the person owing the debts, credit, or other personal property

• copy of writ
• notice that debts, credit, are attached

Question 49

what is the manner of attaching of attaching property in custodia legis

Answer 49

• copy of writ of attachment filed to the proper court/quasi-judicial agency
• notice of the attachment served upon the custodian

Question 50

exceptional circumstances where attached property may be sold even BEFORE entry of judgment

Answer 50

when it appears to the court, upon notice to both parties, that the property attached is PERISHABLE [or] the interest of ALL the parties will be subserved (promote) by the sale thereof

Question 51

Remedies of a 3rd person whose property is wrongfully attached by the sheriff

Answer 51

1. terceria
2. motion to set aside the levy on attachment
3. motion for intervention
4. file a separate action to nullify levy with damages**

Question 52

how can the 3rd party effect terceria?

Answer 52

• making an affidavit of his title to the property [or] his right to the possession & serve it to the sheriff
• When the third party files a claim (terceria) to challenge the attachment, the attaching party (plaintiff/creditor) has the option to post an indemnity bond. If the bond is posted and approved by the court, the sheriff may continue holding the property under attachment.

Question 53

what is the period to claim damages in the terceria?

Answer 53

refers to the time limit within which a third person (who claims ownership or right to possession of the property) can file an action for damages against the indemnity bond. Here’s a breakdown of what it means:

The third person has 120 days from the date the indemnity bond is posted to file an action for damages against the bond.

No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the indemnity bond

Question 54

should the sheriff be sued by the 3rd party in a terceria, who shall represent him?

Answer 54

the solicitor general and shall be paid by the national treasurer out of the funds appropriate for the purpose

Question 55

how to effect motion to set aside levy on attachment as a remedy of a 3rd person

Answer 55

file the motion in the court which issued the PA and furnish a copy to the sheriff

Question 56

when is a motion for intervention allowed?

Answer 56

allowed as long as there is no judgment rendered in the case

Question 57

can one avail more than one remedy?

LB

Answer 57

Yes as ruled in the case of Ching v. CA. One may avail all or any of the remedies. The remedies are cumulative

Question 58

insofar as the defendant or adverse party is concerned;

How to discharge the attachment?
what are the remedies of the adverse party?

Answer 58

1. filing a motion to discharge the attachment [and] posting a counter-bond
2. filing a motion to set aside/discharge the attachment without filing a counter-bond on the ff. grounds;

[iiee]
- attachment improperly or irregularly issued (no ground)
- attachment bond is insufficient
- attachment is excessive (in a case for partial discharge)
- property is exempt from execution thus exempt from PA

Question 59

in what instance is the posting of a counter-bond less than the attachment bond?

Answer 59

for example what is attached is 3 parcels of land a car. the counter-bond will be the price of the car and not the all

Question 60

what is the effect of the discharge of the attachment?

Answer 60

the property attached/proceeds of any sale of it shall be delivered to the party making the counterbond or the person appearing on his behalf.

Question 61

how to apply for Damages by reason of wrongful attachment

[B]
even if you lose n the case, can you still claim dmaages?

Answer 61

yes you can stil claim damages in spite losing when you;

application for damages the ground of irregular/improper [or] excessive must be filed before;
- trial, or
- appeal perfected (appellate court may allow trial to decide application), or
- judgment becomes executory

with due notice to the attaching party [and] his sureties

setting forth the facts showing his right to damages [and] amount

such damages only awarded AFTER proper hearing [and] is included in the judgment in the main case

Question 62

If attachment bond is insufficient to satisfy the award of damages, what is the remedy of the party against whom the attachment was issued?

Answer 62

in the same action, recover damages from any property of the attaching party not exempt from execution

Question 63

even if party against whom the writ of attachment was issued against loses, in what instance can they still recover damages?

Answer 63

1. when writ of attachment was improperly / irregularly implemented
2. where there is excessive attachment

TN:
- the damages to be claimed is against the attachment bond
- should it be insufficient, the properties of the attaching party
- NOT IN A SEPARATE ACTION

Question 64

WHAT is the Manner of Satifying the judgment out of the property attached?

gee - gee! im glad i won
gor - oppposite

Answer 64

1. by paying to the [judgment obligee] the proceeds of all sales of perishable or other property sold in pursuance of the order of the court, or so much as shall be necessary to satisfy the judgment
2. if any balance remains due, by selling property real or personal to satisfy the balance
3. collecting from all persons having in their possession credits belonging to the Judgment obligOR or owing debts
4. when judgment has been paid, sheriff, upon reasonable demand, return to the judgment obligOR the attached property remaining
5. when judgment is final & executory, sureties of any counter-bond given shall become charge & bound to pay judgment obligEE upon demand the amount under the judgment