RULE 57: PRELIMINARY ATTACHMENT Flashcards
Define Attachment
Attachment is a provisional remedy by which the property of an adverse party is taken into legal custody, either at the commencement of an action or at any time thereafter, as a security for the satisfaction of any judgment that may be recovered by the plaintiff or any proper party.
For general audience: Attachment is a legal process that allows a plaintiff or other party to take possession of property belonging to the defendant as a form of security. This can happen at the beginning of a legal case or at any point during the process. It ensures that the plaintiff or other parties will be able to collect any money they are awarded if they win the case.
Is preliminary attachment a statutory remedy?
Yes, preliminary attachment is purely a statutory remedy. it cannot exist without a statute granting it. it’s legal basis for application are the Rules of Court and the Civil Code of the Philippines.
For general audience: Preliminary attachment is a legal remedy that allows a creditor to go after a debtor’s property. It’s only possible because there are laws that allow it. These laws are found in both the Rules of Court and the Civil Code of the Philippines.
Give an example of a situation involving preliminary attachment.
A filed an action to collect a sum of money from B, who is about to leave the country, with a clear intent to defraud his creditor. Here, the action for collection
may be coupled with an application for issuance of a writ of preliminary attachment directed against the property of B in order to prevent him from disposing of his property during the pendency of the litigation.
What happens when the writ of preliminary attachment is issued?
When the writ is issued, the property of the adverse party would be then put under custodia legis (custody of law) to be held by the court for the satisfaction of whatever award which may be obtained by the applicant.
For general audience: When a legal order is given, the property of the opposing party is placed under the control of the court. This is done to ensure that any compensation awarded to the requesting party can be paid for using the property of the opposing party.
Can preliminary attachment be subject of a separate action?
No. Preliminary attachment itself cannot be the subject of a separate action independent of the principal action because the attachment is only an incident of such action. It is not a distinct proceeding and can only be availed of during the pendency of a principal action because it is a mere provisional remedy.
What is the purpose of a preliminary attachment?
(1) to seize the property of the debtor in advance of final judgment and to hold it for the purpose of satisfying said judgment; or (2) to acquire jurisdiction over the action by actual or constructive seizure of the property in those instances where personal or substituted service of summons on the defendant cannot be effected.”
As declared by the SC in Philippine Commercial International Bank v Alejandro
When can an order and writ of preliminary attachment may be applied for?
- At the commencement of the action; or
- At any time before the entry of judgment.
(3. After the service of summons on the defendant)
What are the three kinds of attachments?
- Preliminary attachment
- Garnishment
- Levy on execution
What are the grounds for the issuance of a writ of preliminary attachment?
- Recovery of a specified amount of money or damages
- Action for money or property embezzled
- Recovery of property unjustly or fraudulently taken
- Fraud in contracting and performing and obligation
- Removal or disposal of property with intent to defraud
What are the two elements that must be present for a writ under the ground of removal or disposal of property with intent to defraud to prosper?
- A party has removed or disposed of his property or is about to do so
- The act must be done with intent to defraud the creditor
The act must be shown also to have been done with the intent to defraud the creditor.
Which persons cannot be served by publication?
- Resident defendants whose identity or whereabouts are unknown
- Resident defendants who are temporarily out of the country
What are the contents of the affidavit?
- Must state that a sufficient cause of action exists;
- Must state that the case is one of those mentioned in Section 1, Rule 57;
- Must state that there is no other sufficient security for the claim sought to be enforced by the action; and
- Must state 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 as the sum for which the order is granted above all legal counterclaims.
What happens if there is failure to allege in the affidavit the requisites prescribed for the issuance of a writ
of preliminary attachment?
It renders the writ fatally defective, and the judge issuing it is deemed to have acted in excess of his jurisdiction.
There must be a showing of insufficiency of the security for the claim sought to be enforced by the applicant or else the writ will not be issued if a real estate mortgage exists to secure the obligation even if an action for a sum of money was filed.
What are the stages in granting preliminary attachment?
- Court issues the order granting the application
- Writ of attachment issues pursuant to the order granting the issuance of the writ
- Writ is implemented
What must be served on the defendant before a levy on attachment can be made by the sheriff?
- Service of summons;
- Copy of the complaint;
- Application for attachment;
- Applicant’s affidavit and bond; and
- Order and writ of attachment
It is apparent that the service mentioned is necessary to acquire jurisdiction over the person of the defendant before the writ is implemented and to comply with the due process requirements of the law.
