PRELIMINARY ATTACHMENT UNDER RULE 57 OF THE 1997 RULES OF CIVIL PROCEDURE (PHILIPPINES)

I. OVERVIEW

Preliminary Attachment is a provisional remedy afforded to a litigant (typically the plaintiff) to secure the outcome of a pending case. By seizing the property of the adverse party (typically the defendant) at the earliest stages of litigation, the remedy ensures that any eventual judgment in favor of the attaching party can be satisfied. It is not an end in itself but an ancillary measure designed to protect the prevailing party’s claim.

This remedy is governed by Rule 57 of the 1997 Rules of Civil Procedure (as amended). Below is a comprehensive discussion of everything you need to know about Preliminary Attachment in the Philippines, from its grounds and requirements to the proper procedure, effects, and modes for discharge.

II. GROUNDS FOR ATTACHMENT (SECTION 1, RULE 57)

A party seeking the issuance of a Writ of Preliminary Attachment must show that the action involves at least one of the following grounds:

Recovery of an Unsecured Claim/Contract
- The action is for the recovery of a specified amount (or damages) arising from an obligation not secured by a public or private document, or in any other case where the defendant is guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought.
Fraud in Contracting an Obligation or Concealment/Disposition of Property
- The defendant has removed or disposed of their property, or is about to do so, with intent to defraud the plaintiff.
Embezzlement, Fraud, or Defalcation by Public Officer, or Officer of a Corporation, or Attorney, Factor, Broker, or Agent
- The action is against a public officer, or a person in a fiduciary capacity, who is alleged to have committed fraud, embezzlement, or misappropriation in the performance of their duties.
Recovery of Possession of Property Fraudulently Taken, Detained, or Concealed
- The action is for the recovery of property unjustly or fraudulently taken, detained, or converted; or for damages for the taking or detention of property when it is in danger of being concealed or removed from the jurisdiction.
Action Against a Party Who is Not Residing and Not Found in the Philippines
- When the defendant is a person not residing in the Philippines (and who is not found therein), or is about to leave the country, or has absconded, or is concealing himself to avoid service of summons.
- This ground ensures there is a way to secure assets within the jurisdiction for enforcement of any final judgment.

These grounds protect the plaintiff from defendants who, due to fraudulent, dilatory, or evasive tactics, might frustrate the satisfaction of any final and executory judgment.

III. WHO MAY APPLY FOR A WRIT OF PRELIMINARY ATTACHMENT

Plaintiff or any proper party in the main action
The Rules explicitly authorize the plaintiff in the principal action (or co-plaintiffs with a stake in the claims) to apply for the writ. In some instances, a counterclaiming defendant may also apply, provided that the counterclaim is one of the types of actions that can be secured by attachment and the grounds exist in their favor.
Court Where Application is Filed
The application for preliminary attachment is filed in the same court where the main action is instituted. If the main action is pending in a Regional Trial Court (RTC), that is likewise the court with jurisdiction to grant or deny the writ. For first-level courts (e.g., Municipal Trial Courts), if they have jurisdiction over the principal action, then the application for attachment is filed there.

IV. REQUIREMENTS FOR ISSUANCE

A. Affidavit Showing Factual Grounds (SECTION 3, RULE 57)

The applicant must execute an affidavit (often called an “affidavit of merit” or “affidavit for attachment”) stating:

That the applicant has a just and valid cause of action against the defendant;
The amount due to the applicant above all legal counterclaims;
That the applicant believes that one or more of the grounds for attachment (under Section 1, Rule 57) exist; and
The specific grounds relied upon (e.g., fraud, absconding, etc.), with supporting statements of fact, not mere conclusions of law.

B. Bond Requirement (ATTACHMENT BOND)

The applicant must also file a bond in an amount fixed by the court. This bond:

Secures the defendant against any damages he may sustain if the court later finds that the attachment was wrongful or groundless.
Must be executed in favor of the defendant to cover all costs and damages that may be awarded if the attachment is found to have been improperly or irregularly issued.

Without these two requirements—(1) a sufficient affidavit and (2) an attachment bond—the court will not grant the writ of preliminary attachment.

V. PROCEDURE FOR ISSUANCE

A. Ex Parte Application (SECTION 2, RULE 57)

Ex Parte Nature
The application for the writ may be heard and granted ex parte. This means that the defendant need not be notified of the hearing on the application. This is to prevent the defendant from frustrating the attachment by hastily disposing or transferring the property once alerted.
Court’s Discretion
Even if all formalities are met, the issuance of the writ is discretionary upon the court. The judge must be convinced that the affidavits and the claim are legitimate and the remedy is proper under the circumstances.

B. Levy / Implementation of the Writ (SECTIONS 5 & 6, RULE 57)

Once issued, the writ is served and implemented by a sheriff or proper officer. The property is then subjected to a “levy,” meaning the sheriff takes custody or control of the property—or at least marks or identifies it as attached—so that it cannot be sold or transferred to frustrate the potential judgment.

Personal Property: The sheriff generally takes possession or, when impracticable, leaves a copy of the writ and a notice that said property is attached.
Real Property: A description of the property and a copy of the writ is usually filed with the register of deeds where the property is situated, effectively creating a lien or encumbrance.
Stocks, Credits, Debts: The sheriff garnishes such intangible properties by serving notice on the holder (e.g., a bank, a corporation holding shares on behalf of the defendant, etc.). This garnishment effectively freezes the property or debt from the viewpoint of the defendant.

VI. DISSOLUTION OR DISCHARGE OF ATTACHMENT

After attachment is enforced, the defendant has remedies to seek discharge or dissolution:

By Posting a Counterbond (SECTION 12, RULE 57)
- The defendant (or another party on behalf of the defendant) may post a counterbond in an amount equal to that fixed by the court to secure the release of the attached property.
- Once approved by the court, and if the defendant is determined to have posted sufficient security, the attached property is returned to the defendant’s possession.
By Filing a Motion to Discharge on the Ground of Improper or Irregular Issuance (SECTION 13, RULE 57)
- The defendant may argue that the affidavit was false, or that the requirements for the issuance of the writ were not actually satisfied, or that the attachment is excessive or irregular in some manner.
- If the court sustains the motion, the attachment may be set aside in whole or in part.
Partial Discharge
- If the movant can show that only part of the attachment is improper, or the amount attached is excessive, then the court can partially discharge or reduce the scope of the levy.

VII. EFFECTS OF ATTACHMENT

Creates a Lien on Property
Once property is validly attached, it becomes charged with a lien. Any subsequent transactions by the defendant regarding the attached property (e.g., sale, mortgage, or other encumbrances) are generally subject to the outcome of the case.
Preserves the Property to Satisfy Judgment
The fundamental purpose is to ensure that the property remains available for execution in the event that the plaintiff prevails.

VIII. LIABILITY FOR WRONGFUL OR EXCESSIVE ATTACHMENT

A party who wrongfully or improperly obtains a writ of attachment may become liable for:

Actual Damages
- The defendant may recover for the direct pecuniary loss suffered due to the wrongful attachment.
Moral and Exemplary Damages
- In certain cases where bad faith, malice, or fraud is shown, courts may award moral or even exemplary damages.
Attorneys’ Fees and Costs of Suit
- The defendant who successfully challenges a wrongful attachment can recover the cost of litigation, including attorney’s fees if proven under the usual requirements.

The bond posted by the attaching party serves as a security for these potential damages.

IX. LEGAL ETHICS CONSIDERATIONS

Good Faith and Candor to the Court
- Lawyers have a duty of candor; they must ensure that the affidavits for attachment are truthful, supported by facts, and not merely used to harass or oppress the defendant. An attorney who knowingly assists a client in pursuing a wrongful attachment can face disciplinary sanctions.
Avoiding Abuse of Process
- Courts frown upon the use of attachment for ulterior motives (e.g., to freeze a defendant’s operations unnecessarily or to coerce a settlement). Abusive or vexatious litigation tactics can expose both counsel and client to penalties.
Professional Responsibility in Dealing with Attached Assets
- Counsel must avoid interfering with the possession or ownership of attached properties beyond what the court’s writ allows. Any extrajudicial actions to seize or appropriate such property may constitute unethical or even criminal conduct.

X. SELECT JURISPRUDENTIAL GUIDELINES

Over the years, the Supreme Court has provided guiding principles on preliminary attachment:

Strict Construction of Rules
- Because attachment is a harsh remedy (it can disturb property rights before trial), courts require strict compliance with technical requirements.
Prima Facie Showing of Fraud or Grounds
- Affidavits must show detailed factual allegations of fraud, not mere general averments. Failure to do so may lead to denial or dissolution of the writ.
Attachment is Not a Tool for Collections Without Substantial Basis
- The Supreme Court cautions litigants that attachment cannot be used as a tool to summarily collect sums in dispute unless there is a strong legal and factual foundation.
Preference for Moderation / Partial Release
- Where the amount or scope of property attached is excessive, the court has the power (and is encouraged) to limit or reduce the levy to a reasonable extent.

XI. LEGAL FORMS: SAMPLE FORM FOR APPLICATION AND AFFIDAVIT

Below is a simplified outline of the contents (not an official form) required for an Application for Preliminary Attachment:

Caption: (Title of the Case, Docket Number, Court)
Applicant’s (Plaintiff’s) Verified Affidavit:
- Jurisdictional facts (action is pending in proper court).
- Plaintiff’s capacity to file the action (legal personality, standing).
- The nature of the claim and the sum involved.
- Specific grounds under Rule 57, Section 1—detailed factual allegations (e.g., “Defendant is about to abscond,” “Defendant fraudulently contracted the debt,” etc.).
- Verification and certification against forum shopping.
Prayer:
- Request issuance of a Writ of Preliminary Attachment ex parte.
- Specification of the property to be attached, if known.
Attachment Bond:
- Indicate the bond amount or incorporate the bond language referencing the surety’s undertaking.

Example Structure (very simplified; actual forms vary and should be customized to the facts):

REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT
[Branch, City]

JUAN DELA CRUZ,                             CIVIL CASE NO. 12345
   Plaintiff,
vs.
PEDRO SANTOS,
   Defendant.
--------------------------------------------/

                    APPLICATION FOR PRELIMINARY ATTACHMENT
                         (With Affidavit of Merit)

PLAINTIFF, by counsel, respectfully alleges:

1. This action is for [state cause of action and reason it falls under the grounds for attachment].
2. The amount due to Plaintiff is [state amount].
3. Plaintiff believes Defendant [state specific ground under Sec. 1, Rule 57].
   - (Allege facts showing fraud, absconding, concealment of property, etc.)
4. Plaintiff stands ready to file an attachment bond in such amount as the Honorable Court may fix.

WHEREFORE, premises considered, it is respectfully prayed that a Writ of Preliminary Attachment be issued ex parte against the properties of Defendant, to secure Plaintiff’s claim.

Respectfully submitted,

[Date, Place]

(SIGNATURE OF COUNSEL)
[NAME OF COUNSEL]
[IBP No., PTR No., Roll No., MCLE Compliance, etc.]
Counsel for Plaintiff

                 AFFIDAVIT OF MERIT / VERIFICATION
I, JUAN DELA CRUZ, Filipino, of legal age, etc., after having been duly sworn to in accordance with law, depose and say that:
1. I am the plaintiff in the above-entitled case.
2. I have read the foregoing Application and all the allegations therein are true and correct of my personal knowledge or based on authentic records.
3. (Include detailed statements as required by Rule 57, Sec. 3.)
x----------------------------------x

(Signature of Affiant)

SUBSCRIBED AND SWORN to before me this __ day of _______, affiant exhibiting to me his government-issued ID No. ______.

Notary Public

Always consult the latest or updated official and local practice requirements for attaching the notarial certificate and ensuring compliance with 2019 Amendments to the Rules of Civil Procedure and local rules on notarial practice.

XII. PRACTICAL TIPS

Present Clear Factual Basis
- Courts scrutinize allegations of fraud or imminent departure from the Philippines. Provide documentary evidence (e.g., transaction records, statements of witness, proof of unusual asset transfers).
Use Attachment as a Shield, Not a Sword
- Resist the temptation to use it punitively. Be prepared to defend the grounds before the court, as the defendant can quickly move to discharge the writ and claim damages for a baseless attachment.
Coordinate Closely with the Sheriff
- Timely and correct enforcement (levy or garnishment) is critical. Inaccurate descriptions of property or delays can render the attachment ineffective.
Monitor the Defendant’s Counterbond
- If the defendant opts to discharge by putting up a counterbond, assess its sufficiency and authenticity (the surety’s financial solvency, for instance).

XIII. CONCLUSION

Preliminary Attachment under Rule 57 is a potent instrument in Philippine civil litigation, allowing a plaintiff to secure the potential fruits of a successful judgment. However, because of its extraordinary and summary nature, the Rules require strict adherence to procedural and substantive requirements. A lawyer’s ethical obligation demands good faith and thorough due diligence in applying for such a remedy. Courts will enforce compliance stringently, and wrongful or abusive attachment exposes the applicant to significant liability.

When used properly, Preliminary Attachment protects the interests of the litigant with a legitimate and urgent claim, ensuring that the ends of justice are not defeated by fraudulent disposals, concealments of property, or evasive tactics.