Grounds for issuance | Preliminary Attachment (RULE 57) | PROVISIONAL REMEDIES

PRELIMINARY ATTACHMENT UNDER RULE 57 OF THE PHILIPPINE RULES OF COURT
(GROUNDS FOR ISSUANCE)

Below is a comprehensive, meticulously arranged discussion of preliminary attachment with a focus on Section 1, Rule 57 of the Rules of Court, which enumerates the grounds upon which this provisional remedy may issue. While preliminary attachment involves many other procedural and substantive requirements (affidavits, bonds, discharge, and other incidental matters), this write-up emphasizes the key legal foundations and principles governing its grounds for issuance, with contextual explanations and references to pertinent jurisprudence.

1. Nature and Purpose of Preliminary Attachment

  1. Definition
    Preliminary attachment is a provisional remedy by which a plaintiff (or any proper party) may have the property of an adverse party seized at the commencement or during the pendency of the action. Its principal purpose is to secure a possible judgment in favor of the attaching creditor by ensuring that any eventual judgment will be satisfied—particularly when there is a risk that the defendant may dispose of, conceal, or remove property to the detriment of creditors.

  2. Character as a Harsh Remedy
    Because attachment deprives the defendant of control over their property even before judgment, courts strictly construe the rules governing attachment. Philippine jurisprudence consistently describes it as a harsh, rigorous, or extraordinary remedy, which demands strict and faithful compliance with the grounds and procedural requirements under Rule 57.

  3. Ex Parte Issuance
    A writ of preliminary attachment is often issued ex parte (i.e., without prior notice to the defendant) to prevent the defendant from frustrating the remedy by concealing or dissipating assets. This ex parte nature further accentuates the need for stringent adherence to statutory grounds.

2. Statutory Grounds for Issuance

Section 1, Rule 57 of the Rules of Court (as amended) explicitly enumerates six (6) grounds under which a court may issue a writ of preliminary attachment. These grounds are exclusive and must be stated with particularity in the verified application (affidavit) for attachment.

Ground (a)

“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 against a party who is about to depart from the Philippines with intent to defraud his creditors.”

  1. Nature of the Action

    • The suit must involve the recovery of a specified sum of money or damages (excluding moral and exemplary damages).
    • The cause of action may arise from any source of obligation (law, contract, quasi-contract, delict, or quasi-delict).

  2. Defendant’s Condition: About to Depart

    • The defendant must be shown to be about to depart from the Philippines, and such departure must be attended by an intent to defraud creditors.
    • Mere departure or intention to leave is insufficient; it must be established that the departure is for the specific purpose of frustrating or defeating the plaintiff’s claim.

  3. Standard of Proof

    • The applicant must present specific facts, typically in a sworn statement (affidavit), strongly indicating that the defendant’s imminent departure is calculated to evade potential liability.

Ground (b)

“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 other person in a fiduciary capacity, or for a willful violation of duty.”

  1. Fiduciary Relationship

    • This ground requires a fiduciary capacity or a position of trust (e.g., officers of corporations, agents, brokers, attorneys, trustees, etc.).
    • The defendant must have embezzled, fraudulently misapplied, or converted property or money in the course of their employment or fiduciary relation.

  2. Nature of the Action

    • Typically applies to suits for recovery of property or monetary claims that were misappropriated by the defendant in the context of a fiduciary obligation or a duty of trust.
    • This extends to actions for a “willful violation of duty,” which underscores a breach of trust or deliberate wrongdoing in connection with fiduciary responsibilities.

  3. Factual Specificity

    • The plaintiff’s affidavit must specify factual circumstances showing that the defendant abused a fiduciary relationship and misapplied or converted funds or property.

Ground (c)

“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 an authorized person.”

  1. Nature of the Action

    • This ground specifically covers actions for recovery of possession (replevin-type actions) of property that was:
      • Unjustly or fraudulently taken,
      • Unjustly or fraudulently detained, or
      • Unjustly or fraudulently converted.

  2. Concealment, Removal, or Disposal

    • The applicant must show that the defendant has concealed, removed, or otherwise disposed of the property (or part of it) to prevent the applicant (or a duly authorized person) from recovering it.
    • The requisite fraudulent or malicious intent is a key component: the property’s concealment or disposal must be aimed at defeating the recovery.

  3. Direct Link to the Relief Sought

    • The property subject to attachment typically is the same property that the plaintiff seeks to recover. The attachment ensures that the property remains available to satisfy the eventual judgment.

Ground (d)

“In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof.”

  1. Fraud in Contracting a Debt

    • A typical scenario involves allegations that the defendant induced the plaintiff to enter into a contract or extend credit through fraudulent representations.
    • Examples might include false statements about solvency, assets, or other material facts on which the plaintiff relied.

  2. Fraud in Performance of Obligation

    • Alternatively, the defendant might have initially contracted in good faith but committed fraud in performing (or failing to perform) the obligation—e.g., misrepresenting the use of funds, falsifying deliveries, or hiding contract proceeds.

  3. Proof Requirements

    • The applicant must present factual details demonstrating fraud. General averments or suspicions of fraud are not sufficient; courts require specific allegations pointing to the fraudulent scheme.

Ground (e)

“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.”

  1. Removal or Disposal of Property

    • The defendant must have removed or disposed of (or must be about to remove or dispose of) the property.
    • The key element is that the removal or disposal is attended by an intention to defraud creditors, including the plaintiff.

  2. Fraudulent Intent

    • Similar to the other grounds, mere removal or disposal of property is not enough. The applicant must show that this act is undertaken to prevent satisfaction of potential or existing claims.

  3. Examples of Acts Indicating Fraud

    • Rapid, suspicious transfers of assets for nominal value, or “self-dealing” transactions aimed at placing property beyond reach of creditors.
    • Sale or assignment of property to close relatives or affiliates, without fair consideration, may be indicative of such intent.

Ground (f)

“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.”

  1. Non-Resident Defendant

    • Applicable where the defendant does not reside in the Philippines and cannot be found within the territorial jurisdiction.
    • Summons in such cases is typically served by publication, as authorized by the Rules of Court.

  2. Purpose of Attachment

    • In an action in personam or quasi in rem against a non-resident, attachment of the defendant’s property located in the Philippines can secure jurisdiction over that property and provide a res from which a favorable judgment can be satisfied.

  3. Jurisdictional Aspect

    • For non-residents not found in the country, attachment ensures that the court can enforce any subsequent judgment by targeting the defendant’s local assets, effectively transforming the suit into an action quasi in rem.

3. Requisites for Issuance (Beyond the Grounds)

While the grounds are the cornerstone, a few procedural requisites must also be satisfied before the writ may issue:

  1. Affidavit Showing Factual Basis

    • The applicant must file a verified application or affidavit.
    • The affidavit should particularize the facts supporting one or more of the statutory grounds and demonstrate that there is no adequate security for the claim.

  2. Bond Requirement

    • The applicant must give a bond executed in favor of the adverse party.
    • The bond’s amount is typically fixed by the court and is intended to answer for any damages the defendant may sustain if the attachment is found to have been wrongful or oppressive.

  3. Court Order

    • Despite being ex parte, the applicant must secure a court order explicitly granting the writ.
    • The judge must be satisfied that the statutory grounds exist and the procedural requirements have been met.

4. Significance of the Grounds and Strict Construction

  1. Exclusive Enumeration

    • The six (6) grounds of preliminary attachment are exclusive. A litigant cannot invoke grounds outside of those listed in Section 1, Rule 57.
    • A mere suspicion of fraud or worry over collectability does not suffice unless it falls squarely within the enumerated bases.

  2. Strictissimi Juris

    • Courts follow the principle of strictissimi juris, requiring the party seeking attachment to strictly comply with both substantive (grounds) and procedural (affidavit, bond, etc.) requisites.
    • Failure to strictly meet these requirements can result in the denial or dissolution of the attachment.

  3. Consequences of Wrongful Attachment

    • If the attachment is found to have been improperly or maliciously issued, the attaching creditor can be held liable for damages, including attorney’s fees and costs.
    • This underscores the caution courts exercise when granting attachments.

5. Relevant Jurisprudence and Illustrative Points

  1. Davao Light & Power Co. v. CA (G.R. No. 93262, March 6, 1991)

    • Emphasized that a preliminary attachment must be grounded upon specific facts showing the existence of fraud or intent to defraud.

  2. Sevilla v. CA (G.R. No. 93618, April 17, 1992)

    • The Supreme Court underscored the requirement of a detailed affidavit that shows how the defendant’s departure or disposition of property was motivated by fraud.

  3. Oñate vs. Abrogar (G.R. No. 172697, June 21, 2010)

    • Reiterated that preliminary attachment is a harsh remedy and that the courts must be satisfied as to the actual existence of the statutory grounds for attachment.

  4. Equitable Banking Corp. v. IAC

    • Clarified the necessity of showing factual circumstances supporting allegations of fraud. General allegations or conclusions of law are insufficient.

6. Key Points for Practitioners

  1. Careful Drafting of the Application

    • The affidavit or verified application must meticulously allege facts fitting one or more of the statutory grounds.
    • Vague, boilerplate, or purely conclusory assertions of fraud or intent to defraud are likely to fail.

  2. Evidence Supporting the Allegations

    • If challenged (e.g., in a motion to discharge), the applicant must be ready to prove the truth of the allegations that prompted the issuance of the attachment.

  3. Timeliness

    • Attachment may be applied for at the commencement of the action or at any time thereafter (before entry of judgment).
    • In urgent cases, an ex parte issuance can preserve the status quo.

  4. Risk of Liability

    • Because wrongful attachment exposes the applicant to liability, caution in seeking the remedy is paramount.
    • Plaintiffs should weigh the costs, risk, and potential damages for an unfounded attachment.

7. Conclusion

The grounds for the issuance of a writ of preliminary attachment are strictly set out under Section 1, Rule 57 of the Rules of Court. Each ground requires specific factual allegations and demonstration of either fraud, intent to defraud, or a status-based scenario (non-residence, fiduciary breach, etc.). Because of the remedy’s harsh nature—allowing the plaintiff to seize or freeze the defendant’s assets before final judgment—Philippine courts demand strict adherence to the enumerated grounds and the procedural requirements (verified affidavit, bond, and court order).

Any prospective applicant for preliminary attachment must ensure meticulous compliance with these standards, as failure to do so can result in the denial or immediate discharge of the attachment and possible liability for damages to the defendant. Conversely, when properly availed of, preliminary attachment remains a potent device to secure and protect the rights of a legitimate claimant during the pendency of litigation.

Disclaimer: This content is not legal advice and may involve AI assistance. Information may be inaccurate.

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