Preliminary Attachment RULE 57

Requisites; issuance and contents of order of attachment; affidavit and bond | Preliminary Attachment (RULE 57) | PROVISIONAL REMEDIES

Below is a comprehensive discussion of Rule 57 of the Rules of Court (Philippines) pertaining to Preliminary Attachment, with a focus on (1) the requisites for issuance, (2) the contents of the order of attachment, (3) the affidavit requirement, and (4) the attachment bond. While this discussion is extensive, always consult the latest jurisprudence, circulars, and rules, as well as the specific factual circumstances of a case.

I. OVERVIEW OF PRELIMINARY ATTACHMENT

Preliminary attachment is a provisional remedy available to a plaintiff or a party seeking to secure satisfaction of any judgment that may be recovered in the principal action. By having property of the adverse party attached, the attaching party ensures there will be assets or security to satisfy the claim if the suit is successful.

The governing provisions for preliminary attachment in Philippine civil procedure are found in Rule 57 of the Rules of Court (as amended). Preliminary attachment is not a matter of right in all instances; rather, it must be grounded upon causes set forth in the rule and accompanied by strict adherence to procedural requirements.

II. REQUISITES FOR THE ISSUANCE OF A WRIT OF PRELIMINARY ATTACHMENT

Under Section 1, Rule 57, a writ of preliminary attachment may be granted by the court in the following instances (assuming the action is one where a claim for a money judgment, or for some other appropriate relief, is involved):

  1. In an action for recovery of a specified amount of money or damages (other than moral or 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 creditors.
  2. In an action for money or property embezzled or fraudulently misapplied or converted to the use of the defendant who is a public officer, or any other person in a fiduciary capacity, or for a willful violation of duty.
  3. When the defendant has removed or disposed of his property or is about to remove or dispose of it with intent to defraud creditors.
  4. When the defendant is guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof.
  5. When the defendant has done or is about to do some act to defraud the plaintiff.
  6. In actions against a party who is not residing and is not found in the Philippines, or who temporarily resides out of it, or on whom summons may be served by publication.

Key Points/Reminders:

  • The existence of any one of these statutory grounds is sufficient to support an application for a writ of preliminary attachment.
  • The ground(s) invoked must be specifically alleged in the verified application (affidavit) and must be supported by factual details, not merely parroting the language of the rule.

III. ISSUANCE AND CONTENTS OF THE ORDER OF ATTACHMENT

A. Court Having Jurisdiction to Issue the Writ

  1. Where to file: The application for preliminary attachment is usually filed in the same court (be it a Regional Trial Court [RTC] or a court of first level jurisdiction, if allowed by law) where the main action is pending.
  2. Ex parte or after notice: The writ can be issued ex parte (i.e., without notice to the adverse party) or upon motion with notice to the adverse party. Because of its drastic nature, courts often allow issuance ex parte only if the allegations and evidence clearly support the immediate necessity for the writ.

B. Contents of the Order Granting Attachment

Once the court finds the application sufficient in form and substance and the applicant has posted the required bond, it issues an order of attachment addressed to the sheriff. This order:

  1. Directs the sheriff or other proper officer to attach so much of the property in the Philippines of the adverse party as may be sufficient to satisfy the applicant’s demand.
  2. Specifies the amount for which the attachment is to issue.
  3. Instructs the officer as to how to execute the attachment (i.e., seizing, attaching, garnishing, or taking possession of real or personal property).
  4. May include other directives from the court to safeguard the rights of both parties and to ensure proper execution of the writ.

Note: The order of attachment must be clear in scope and amount, ensuring that no more property than necessary is attached.

IV. AFFIDAVIT REQUIREMENT

A. Nature of the Affidavit

Before a writ of preliminary attachment can issue, Section 3, Rule 57 requires the applicant (or his duly authorized representative) to submit an affidavit that must:

  1. Be verified: It should be executed under oath, containing a statement that affiant is swearing to the truth of the allegations based on personal knowledge or authentic records.
  2. State that a sufficient cause of action exists: The affidavit must show that the main action is validly grounded and that the applicant has a prima facie right to the relief sought.
  3. State the ground(s) for the application for attachment (e.g., defendant’s fraudulent disposition of property, defendant’s attempt to abscond, etc.) with supporting facts (not mere conclusions).
  4. Show that there is no other adequate security for the claim, or that the amount due is as much or more than the property to be attached.
  5. State that the attachment is not sought for an improper or malicious purpose (i.e., not merely to harass or oppress the adverse party).

B. Importance of Factual Allegations

  • Courts have consistently ruled that mere parroting of the statutory language in the affidavit is insufficient.
  • The affidavit must set forth specific facts showing the existence of at least one of the statutory grounds, proving a likelihood of fraudulent intent, flight from jurisdiction, or fraudulent disposition of assets, etc.

C. Consequences of a Defective or Insufficient Affidavit

  • A motion to discharge the attachment may be successfully invoked by the adverse party if it can show that the affidavit filed by the attaching party is fundamentally defective (i.e., it contains mere conclusions, false statements, or is not verified).
  • If the affidavit is found to be fraudulent or executed in bad faith, the applicant can be held liable for damages under the attachment bond.

V. ATTACHMENT BOND

A. Purpose of the Bond

Under Section 2, Rule 57, the applicant for preliminary attachment must file a bond executed to the adverse party, ensuring the payment of all costs and damages that the adverse party may sustain by reason of the attachment if the court finally finds that the applicant was not entitled thereto.

B. Amount of the Bond

  • The bond must be fixed by the court in an amount at least equal to the sum for which the order of attachment is granted (or as the court may direct).
  • It is intended to protect the defendant (or respondent) in case it is later determined that the attachment was wrongfully or improvidently issued.

C. Conditions and Liability Under the Bond

  • The bond is conditioned on the applicant’s obligation to pay all damages which the adverse party may suffer by virtue of the attachment (e.g., loss of use of property, injury to business, or moral damages if the issuance of the writ was malicious).
  • If the court discharges the attachment or if it is found that the attachment was wrongful, the adverse party may proceed against the bond for compensation of its losses.
  • The bonding company (or sureties) may be jointly and severally liable with the applicant, depending on the terms of the bond.

VI. SUMMARY OF PROCEDURAL STEPS

  1. Filing of the Main Action: The lawsuit asserting a claim for money or an obligation that falls under any of the enumerated grounds in Section 1, Rule 57.
  2. Application for Attachment: Filed with the court where the main action is pending. Must include:
    • Verified Affidavit (showing cause of action, valid ground for attachment, and that the remedy is not sought for an improper purpose).
    • Attachment Bond (in the amount fixed by the court).
  3. Court Evaluation:
    • The court examines the affidavit and supporting documents.
    • The court fixes the amount of the attachment bond.
  4. Issuance of the Order of Attachment and the Writ:
    • The court issues an order of attachment and the corresponding writ for service by the sheriff.
    • The order and writ specify the amount, instructions, and property subject to attachment.
  5. Service and Implementation:
    • The sheriff implements the writ by attaching the defendant’s property (real, personal, or garnishable assets).
  6. Possible Motion to Discharge:
    • The defendant may move for the discharge of the attachment by showing that the writ was improperly or irregularly issued, that the affidavit was defective, or by posting a counter-bond.
  7. Final Disposition:
    • If the plaintiff wins, the attached property may be applied to satisfy the judgment.
    • If the plaintiff loses or the writ is deemed wrongful, the attachment is discharged and the defendant may proceed against the bond.

VII. RELEVANT JURISPRUDENCE AND LEGAL CONSIDERATIONS

  1. Strict Construction: Courts construe the rules on attachment strictly against the applicant because attachment is a harsh, extraordinary remedy.
  2. Good Faith Requirement: The affidavit must be based on actual facts known to the affiant. Any false or reckless statement may subject the applicant to damages.
  3. No Fishing Expedition: Attachment should not be used merely to harass or coerce settlement from a defendant with no real basis in law or fact.
  4. Liability for Wrongful Attachment: Where the attachment is lifted due to improvidence or lack of factual/legal basis, courts often award actual damages, attorney’s fees, and in proper cases, moral and exemplary damages.

VIII. PRACTICAL TIPS AND BEST PRACTICES

  1. Meticulous Fact-Gathering: Before applying for attachment, thoroughly investigate the factual basis (e.g., attempts to conceal or dispose of assets, flight risk) and document them in an evidentiary affidavit.
  2. Sufficient Bond: Make sure the bond you post is from a reputable bonding company and adequately covers the potential damages the adverse party might claim if the attachment is lifted.
  3. Seek Specificity: Draft your affidavit in such a way that it states the who, what, when, where, and how of the defendant’s alleged fraudulent acts or other relevant grounds.
  4. Proportional Attachment: Request attachment only up to the amount sufficient to secure the claim. Overly broad attachments risk being set aside or reduced by the court.
  5. Be Vigilant After Issuance: Monitor the sheriff’s attachment process to ensure it is done properly and to avoid claims of abuse or irregularity.
  6. Prepare for a Counter-Bond: Anticipate that the adverse party may post a counter-bond to discharge the attachment. Be ready to prove in court the validity and necessity of the attachment at summary hearings.

IX. FINAL REMINDERS

  • A provisional remedy like preliminary attachment is always subject to the sound discretion of the court.
  • Because of its extraordinary nature, all procedural and substantive requirements under Rule 57 must be strictly complied with.
  • When in doubt, consult or engage with reputable legal counsel experienced in provisional remedies and litigation strategy, and remain updated on any amendments to the Rules of Court and relevant Supreme Court circulars or rulings.

In sum, obtaining a writ of preliminary attachment demands:

  1. A clear, valid ground as enumerated in Section 1, Rule 57.
  2. A verified affidavit that sufficiently establishes the factual circumstances warranting attachment.
  3. The posting of an attachment bond to answer for possible damages if the court finds the attachment was improvidently issued.
  4. Adherence to the procedural steps of filing, issuance, and implementation under the Rules of Court, carefully ensuring that the order of attachment contains all necessary directives and is properly served and enforced.

By meticulously following these rules, a litigant can effectively secure and protect its interests pending final resolution of the principal action, while minimizing risks of liability for wrongful or abusive use of this provisional remedy.

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

Posting of a counterbond | Preliminary Attachment (RULE 57) | PROVISIONAL REMEDIES

Comprehensive Discussion on the Posting of a Counterbond to Discharge a Preliminary Attachment under Rule 57 of the Philippine Rules of Court

1. Overview of Preliminary Attachment

Preliminary attachment is a provisional remedy governed by Rule 57 of the Rules of Court. It allows a plaintiff (or defendant asserting a counterclaim) to have the property of an adverse party attached as security for the satisfaction of any judgment that may be recovered in certain actions. Typically, it is availed of where there is a likelihood that the defendant may remove or dispose of property to the detriment of the plaintiff’s claim.

Key grounds for preliminary attachment (under Section 1, Rule 57) include:

  1. The defendant is about to depart from the Philippines with intent to defraud creditors.
  2. The defendant conceals or removes property to defraud creditors.
  3. The action is against a party guilty of fraud in contracting the debt or incurring the obligation.
  4. The action is for recovery of property, and the property is in danger of being lost, removed, or disposed of by the defendant.
  5. Other grounds specifically mentioned in Section 1, Rule 57.

Once granted, attachment creates a lien or custodia legis over the defendant’s property, placing it under the control of the court, subject to the final outcome of the case.

2. Right to Discharge or Release the Attachment

A defendant (or any party whose property is attached) is not without remedy if a writ of attachment is issued against his or her property. Under the Rules, there are two principal ways to seek dissolution or discharge of the attachment:

  1. By a motion to set aside/dissolve the attachment on the ground that it was improperly or irregularly issued, or that the attachment was improperly or irregularly enforced.
  2. By posting a counterbond (or making a cash deposit) sufficient to cover the amount fixed in the order of attachment.

This discussion focuses on posting a counterbond, which allows the party whose property was attached to secure the release of that property even if the attachment was properly issued.

3. Statutory Basis: Sections 12 and 13, Rule 57

The key provisions on the posting of a counterbond are found in Sections 12 and 13 of Rule 57.

A. Section 12: Discharge of Attachment Upon Giving Counterbond

  1. When to Post Counterbond

    • At any time after the order of attachment is granted and before or after property has been actually attached, the party whose property is subject to the writ (or a person appearing on his behalf) may seek to discharge the attachment by providing a counterbond.
    • This can be done even after final judgment, subject to certain conditions.

  2. Amount of the Counterbond

    • The counterbond must be in an amount equal to that fixed by the court in the plaintiff’s attachment bond (i.e., typically, an amount sufficient to answer for any judgment that the plaintiff may recover, plus allowable costs).
    • In some instances, the court may require a different amount if circumstances warrant, as the bond should be reasonably commensurate to the claim secured by the attachment.

  3. Form of the Counterbond

    • The counterbond is typically executed either (a) by a surety authorized by the Supreme Court to transact surety business, or (b) by a cash deposit.
    • A surety bond must be issued by a reputable and accredited surety company.
    • If the party opts to post a cash deposit, it must be for the full amount required.

  4. Approval of the Counterbond

    • The adverse party (the attaching creditor) is notified and given an opportunity to oppose the sufficiency of the bond or the sureties.
    • If the court is satisfied with the sufficiency of the surety or bond, it will order the discharge of the attachment over the property or the release of the property already levied upon.

  5. Effect of the Discharge

    • Once the court approves the counterbond, the attached property is released from custody and returned to the possession of the party from whom it was taken.
    • The discharge of the attachment does not deprive the attaching creditor of security; rather, the counterbond now stands in place of the property to answer for any eventual judgment in favor of the attaching creditor.

B. Section 13: Increase or Reduction of Attachment or Counterbond

  1. Increase or Reduction

    • If, during the proceedings, it appears that the amount of the bond or counterbond is insufficient or excessive, the court may order the increase or reduction of the attachment bond or the counterbond.
    • This ensures that the bond accurately reflects the potential liability.

  2. Consequences of Non-Compliance

    • If the attaching creditor fails to increase the attachment bond when ordered to do so, the attachment may be lifted or discharged.
    • Conversely, if the party seeking to discharge the attachment (through the counterbond) fails to comply with a court order to increase the counterbond, the attachment may be reinstated or continued.

4. Procedure for Posting the Counterbond

  1. Filing of a Motion

    • The party whose property is attached files a motion to discharge or lift attachment on the ground that he or she is posting a counterbond.
    • This motion must be served upon the adverse party or counsel.

  2. Attachment of the Proposed Counterbond

    • A copy of the surety bond (or proof of cash deposit) is typically attached to the motion for the court’s consideration.

  3. Hearing and Determination by the Court

    • The motion is set for hearing. The adverse party may oppose by challenging the sufficiency of the sureties or the amount of the bond.
    • The court evaluates the objections (if any) and, if satisfied that the bond is adequate, issues an order approving the counterbond and discharging the attachment.

  4. Release of the Attached Property

    • Upon issuance of the court’s order, the Sheriff or the proper officer executes a Release of Attachment and returns the property to its rightful owner or possessor.

5. Legal Effects and Implications

  1. Property Freed, but Bond Remains

    • Once the bond is approved, the specific property previously under attachment is effectively freed from the lien of the attachment; however, the bond remains liable to answer for the judgment.

  2. Continuing Liability of the Counterbond

    • If the party who obtained the attachment ultimately prevails in the main action and is awarded a sum of money, the prevailing party may move against the counterbond if the other party fails to satisfy the judgment.
    • The sureties may be held to pay or deliver so much as may be sufficient to satisfy the judgment (including costs and damages).

  3. No Waiver of Defenses

    • Posting the counterbond and discharging the attachment does not operate as a waiver of any substantive or procedural defense the defendant may have. It merely replaces the property with a security bond.

  4. Interaction with Other Remedies to Dissolve Attachment

    • Even if a defendant moves to dissolve the attachment on the grounds that it was improperly or irregularly issued, he or she may also post a counterbond to obtain the immediate release of the property—without prejudice to the resolution of the motion attacking the validity of the attachment.
    • If the court later finds that the attachment was improperly issued, it can award damages against the attaching creditor’s bond.

6. Practical Considerations

  1. Choosing a Reputable Surety

    • Courts often scrutinize surety companies to ensure they are accredited and have sufficient assets. Using a known, reputable surety avoids delays and objections.

  2. Cash Deposit vs. Surety Bond

    • Posting a cash deposit with the court may be more straightforward, but it ties up the party’s liquidity.
    • A surety bond is often more practical, but it involves paying a premium and possibly providing collateral to the surety company.

  3. Timely Opposition by the Attaching Party

    • If the attaching party believes the bond is insufficient, they must timely challenge it; otherwise, the court will likely approve the counterbond.

  4. Handling Potential Increases

    • The attaching creditor may file a motion to increase the amount of the defendant’s counterbond if there are changed circumstances (e.g., the claim’s value has increased or additional costs/damages are foreseeable).
    • The defendant should be ready to adjust the bond or risk reinstatement of the attachment.

  5. Compliance with Court Orders

    • Speedy and complete compliance with any order from the court to adjust the bond is essential to prevent the attachment from remaining in force or being reinstated.

7. Sample Basic Form: Motion to Discharge Attachment Upon Posting of Counterbond

Below is a simplified template. Actual practice may require additional details or attachments.

Republic of the Philippines
Regional Trial Court
___ Judicial Region
Branch __, ___ (City/Province)

[CASE TITLE]
Plaintiff,
– versus –
Defendant.
Civil Case No. ___

MOTION TO DISCHARGE ATTACHMENT UPON POSTING OF COUNTERBOND

The defendant, through undersigned counsel, respectfully states:

  1. On _______________, this Honorable Court issued a Writ of Attachment against the property of the defendant.
  2. Pursuant to Section 12, Rule 57 of the Rules of Court, defendant is posting a Counterbond in the amount of PHP ________, executed in favor of plaintiff, to answer for any judgment that may be rendered in this case.
  3. A copy of the proposed Counterbond, duly issued by [Name of Surety Company], accredited by this Honorable Court, is hereto attached as Annex “A.”
  4. Defendant respectfully prays that upon approval of the Counterbond, the Writ of Attachment be discharged and any property levied upon be released and restored to defendant.

PRAYER

WHEREFORE, defendant prays that this Honorable Court approve the Counterbond, discharge the attachment issued against his/her property, and grant such other relief as may be just and equitable.

Respectfully submitted.

Counsel for Defendant
Roll No. ________ / IBP No. ___ / PTR No. ___
[Address & Contact Details]

Copy furnished:
[Opposing Counsel / Plaintiff]

8. Key Jurisprudence Points

  • Sufficiency of the Counterbond: Courts have discretion in determining the sufficiency of the amount and the sureties’ solvency. As held in various Supreme Court rulings, what is essential is that the counterbond is adequate to secure the claim and has been approved by the court.
  • Liability of the Sureties: Once judgment is rendered in favor of the attaching creditor, the sureties on the counterbond become directly and primarily liable if the principal fails to satisfy the judgment.
  • Separate from Issues of Wrongful Attachment: Posting a counterbond does not bar the defendant from seeking damages for wrongful attachment if it is later proven that the writ was improperly issued.

9. Ethical and Professional Responsibilities

For lawyers handling cases involving posting a counterbond:

  1. Duty of Candor: Ensure that the counterbond or surety is genuine and adequate, and that the motion filed with the court contains accurate information.
  2. Avoidance of Forum Shopping: The remedy of posting a counterbond is purely procedural for discharge of attachment in the same court; it does not open the door to multiple parallel actions on the same cause.
  3. Prompt Service and Diligence: Opposing counsel must be promptly furnished with the motion and supporting documents to allow them a fair opportunity to oppose or comment.

10. Conclusion

Posting a counterbond under Rule 57 is a critical mechanism allowing a defendant (or any party whose property is under attachment) to regain possession and control of their property without having to litigate first the regularity of the attachment order. By substituting a bond for the attached property, the interests of the attaching creditor remain secured.

Understanding the procedures, requirements, and legal implications of this remedy is paramount for both parties:

  • For the defendant, it offers a chance to continue business or personal dealings unencumbered by the attachment while still providing adequate security for the plaintiff’s claim.
  • For the plaintiff, it ensures that if they prevail on the merits, they still have a bond to look to in satisfying the judgment.

The mechanism reflects a balance between the plaintiff’s right to secure future satisfaction of a favorable judgment and the defendant’s right to immediate possession of property, conditioned upon providing the necessary security.

Disclaimer: This discussion is for general legal information. For advice tailored to specific circumstances, consultation with a qualified legal professional is recommended.

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

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

Below is a focused, meticulous discussion on the grounds for dissolution (or discharge) of a writ of preliminary attachment under Rule 57 of the 1997 Rules of Civil Procedure in the Philippines, including relevant principles, procedural pointers, and jurisprudential notes. Although the emphasis is on grounds for dissolution, it is helpful to situate these grounds in the broader context of how preliminary attachments operate under Philippine law.

1. Preliminary Attachment in Brief

  1. Nature and Purpose

    • A preliminary attachment is a provisional remedy that plaintiff(s) may seek at the commencement of an action—or at any time thereafter before final judgment—to secure the outcome of a favorable judgment by seizing property of the defendant.
    • It is designed to protect the creditor (plaintiff) from the risk that the defendant might dispose of, conceal, or remove property to frustrate satisfaction of a prospective judgment.

  2. When Availed Of

    • Under Section 1, Rule 57, a writ of preliminary attachment may issue on any of the grounds enumerated (e.g., when the defendant is about to depart from the Philippines, has removed or disposed of property to defraud creditors, is guilty of fraud in contracting the obligation sued upon, etc.).

  3. Requisites for Issuance

    • Affidavit of the applicant showing that a ground for attachment exists.
    • Bond executed in favor of the adverse party, in an amount fixed by the court, to cover damages in case the court later finds that the attachment was improper or wrongful.

2. General Rule on Dissolution or Discharge

  • The party whose property has been attached can move to discharge or dissolve the writ of preliminary attachment on several grounds, either because the attachment should never have been issued or because the defendant is willing to post a counter-bond (among other scenarios).
  • These grounds largely appear in Sections 12, 13, and 19 of Rule 57 of the Rules of Court.

3. Grounds for Dissolution of Preliminary Attachment

A. Improper or Irregular Issuance of the Writ

  1. Absence of Factual or Legal Basis

    • A key ground is that the writ was improperly or irregularly issued, meaning that the allegations in the application and supporting affidavit do not actually establish any of the specific grounds for attachment under Section 1, Rule 57.
    • The court will look into whether the facts alleged truly warrant the extraordinary remedy of attachment. If the allegations are insufficient or if the supposed ground is not supported by facts, the attachment can be dissolved.

  2. Defective or Insufficient Affidavit

    • Rule 57 specifically requires that the affidavit must positively show that a ground for attachment exists, and that there is no other sufficient security for the claim. If the affidavit is riddled with inaccuracies or it fails to make out a valid ground (e.g., it merely states conclusions without supporting facts), the writ is deemed improperly issued.

  3. Bond Issues

    • If the plaintiff’s attachment bond is insufficient or defective—e.g., it was not executed in the correct amount, or it failed to strictly follow legal formalities—the court may dissolve the attachment on that basis.
    • Insolvency of the surety or the sureties backing the bond also qualifies. If the surety cannot be relied upon to pay damages in case the attachment is found wrongful, the attachment can be set aside.

  4. Non-Compliance with Procedural Requirements

    • Courts have recognized that a writ of preliminary attachment may also be subject to discharge if there was a failure to comply with mandatory procedural steps—such as issuing the writ without affording the defendant an opportunity to show cause, or effecting the attachment in a manner contrary to the rules (e.g., blatant irregularities in the manner of levy).
    • While not all procedural missteps automatically lead to dissolution, substantial or material irregularities—like levying on properties exempt from execution—can be invoked as grounds.

B. Posting a Counter-Bond

  1. Section 12, Rule 57 (Dissolution Upon Counter-Bond)
    • Even if the writ of attachment was validly issued, the defendant may still cause its dissolution by posting a counter-bond in an amount equal to the plaintiff’s claim—or as fixed by the court—to secure the payment of any judgment that the plaintiff may recover.
    • Once the court is satisfied that the counter-bond is in the proper amount and is secured by solvent sureties, the court must discharge the attachment.
    • This is a common, straightforward way to lift the attachment without debating the validity of the grounds alleged by the plaintiff. The law emphasizes the protective nature of the bond: so long as the plaintiff’s interests are adequately secured, the extraordinary remedy becomes unnecessary.

C. Property is Exempt from Execution

  1. Exemptions
    • Some properties, by their nature or by statutory grant, are exempt from execution (and thus from attachment). Examples include certain personal properties considered necessary for the defendant’s livelihood, portions of salaries, etc.
    • If the defendant can show the seized property falls under a statutory exemption, the writ as to that property will be discharged.

D. Other Potential Grounds

  1. Lack of Jurisdiction

    • If the court that issued the writ does not have jurisdiction over the action or over the subject matter of the complaint, the attachment is void. Once the court’s lack of jurisdiction is established, any provisional remedies it issued are subject to being set aside.

  2. No Right of Action

    • Relatedly, if the plaintiff has no cause of action to begin with (e.g., the complaint fails to state a cause of action), the attachment should not stand. A successful motion to dismiss for failure to state a cause of action can moot or lead to the discharge of the writ.

4. Procedure to Dissolve or Discharge the Writ

  1. Filing a Motion to Discharge

    • The defendant (or a third person claiming a right to the property) must file a motion in court, setting forth the grounds why the attachment should be lifted. This motion can be filed at any time before or after levy, but prior to the entry of judgment.

  2. Notice and Hearing

    • The Rules require that there be notice to the plaintiff and that a hearing be conducted. During the hearing, the defendant must show cause why the attachment should be discharged—whether by challenging the grounds, the affidavit, the bond, or by offering a counter-bond.

  3. Proving Irregularities or Improprieties

    • Where the dissolution is sought on the ground of improper or irregular issuance, the burden of proof usually rests on the movant-defendant to demonstrate that the affidavits were insufficient or that no valid ground for attachment exists.

  4. Opposition by the Plaintiff

    • The plaintiff (who obtained the writ) may present evidence justifying the issuance of the writ—showing that the grounds were validly stated and the bond was adequate. If the court finds the issuance was regular and justified, or that no defect or irregularity exists, the attachment stands.
    • However, if the defendant posts a sufficient counter-bond, the court is generally required to discharge the attachment, regardless of whether the attachment was initially proper or not.

  5. Discharge in Whole or in Part

    • The court can order partial dissolution of the attachment when the grounds for dissolution affect only a portion of the attached property, or if the counter-bond is sufficient to cover only part of the plaintiff’s claim.
    • For instance, if one specific item of property was improperly attached because it is exempt from execution, only that item is freed while the attachment continues over the rest.

5. Effects of Dissolution of the Attachment

  1. Restoration of Possession

    • When an attachment is discharged, any property already seized must be released and restored to the defendant (unless the property was also subject to other valid attachments or encumbrances).

  2. Reinstatement in Exceptional Cases

    • If the order of dissolution was secured by a misrepresentation or fraud on the part of the defendant, or if the defendant’s counter-bond is later discovered to be defective or insufficient, the plaintiff may move to reinstate the attachment or to require the defendant to file a new counter-bond.

  3. Claims for Damages

    • If the attachment is determined to have been wrongfully, oppressively, or maliciously obtained, the defendant may claim damages against the plaintiff’s attachment bond. The dissolution itself can be a precursor to a separate hearing or proceeding on damages for wrongful attachment.

6. Jurisprudential Highlights

  1. Strict Compliance with Rules

    • Courts have repeatedly emphasized that preliminary attachment is a harsh, extraordinary remedy. Thus, strict compliance with the requirements under Rule 57 is imperative.
    • The slightest material defect in the affidavit or the bond can justify dissolution (see, e.g., Davao Light & Power Co., Inc. v. CA; Mabayo Farms, Inc. v. CA).

  2. Existence of Fraud Must Be Clearly Alleged

    • In cases where fraud is invoked as a ground for attachment, courts have stressed that general averments of fraud do not suffice. The law demands specificity, otherwise the attachment stands on weak ground and is prone to dissolution.

  3. Preference for Counter-Bond

    • The Supreme Court encourages the use of a counter-bond in many decisions, as it balances the defendant’s property rights with the plaintiff’s right to secure its claim. Once the defendant posts an adequate counter-bond, dissolution almost automatically follows.

7. Practical Tips and Reminders

  • For Defendants Seeking Dissolution:

    1. Attack the affidavit supporting the attachment. Show that it does not establish any of the enumerated grounds in Section 1, Rule 57.
    2. Check the bond. If the surety is insolvent or if the bond is insufficient, highlight these deficiencies.
    3. Consider a counter-bond. If immediate lifting of the attachment is desired and you are confident in defending the case on the merits, posting a counter-bond often provides the fastest route to dissolution.
    4. Assert exemptions. Identify any attached property that is exempt from execution and raise it in your motion to discharge.

  • For Plaintiffs Opposing Dissolution:

    1. Prepare to prove the factual basis for each ground alleged in your affidavit.
    2. Ensure the attachment bond is valid, with a reputable and solvent surety or sureties.
    3. Maintain specificity in alleging fraud or any other special ground. Vague accusations rarely survive judicial scrutiny.

8. Summary of Grounds and Key Takeaway

Under Rule 57, the main grounds for the dissolution or discharge of a writ of preliminary attachment are:

  1. The attachment was improperly or irregularly issued (no valid cause under Section 1, or affidavit is defective, or bond is inadequate).
  2. The property attached is exempt from execution.
  3. The defendant posts a counter-bond sufficient to secure the claimant’s demand.
  4. The surety or sureties on the plaintiff’s bond become insolvent or otherwise disqualified.
  5. There was a substantive or jurisdictional defect (e.g., no cause of action, lack of jurisdiction, fundamental procedural irregularities).

Ultimately, preliminary attachment aims to preserve the status quo while a case is ongoing, but it is never meant to oppress or unduly restrain the defendant. The law provides clear pathways to dissolve the attachment if there is an abuse or if the defendant is willing and able to furnish adequate security. Mastery of these procedural steps ensures fair and proper application of this potent provisional remedy.

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

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.

Preliminary Attachment (RULE 57) | PROVISIONAL REMEDIES

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:

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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:

  1. That the applicant has a just and valid cause of action against the defendant;
  2. The amount due to the applicant above all legal counterclaims;
  3. That the applicant believes that one or more of the grounds for attachment (under Section 1, Rule 57) exist; and
  4. 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:

  1. Secures the defendant against any damages he may sustain if the court later finds that the attachment was wrongful or groundless.
  2. 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.

  1. Personal Property: The sheriff generally takes possession or, when impracticable, leaves a copy of the writ and a notice that said property is attached.
  2. 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.
  3. 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:

  1. 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.

  2. 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.

  3. 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:

  1. Actual Damages
    • The defendant may recover for the direct pecuniary loss suffered due to the wrongful attachment.
  2. Moral and Exemplary Damages
    • In certain cases where bad faith, malice, or fraud is shown, courts may award moral or even exemplary damages.
  3. 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

  1. 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.

  2. 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.

  3. 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:

  1. Strict Construction of Rules
    • Because attachment is a harsh remedy (it can disturb property rights before trial), courts require strict compliance with technical requirements.
  2. 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.
  3. 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.
  4. 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:

  1. Caption: (Title of the Case, Docket Number, Court)
  2. 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.
  3. Prayer:
    • Request issuance of a Writ of Preliminary Attachment ex parte.
    • Specification of the property to be attached, if known.
  4. 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

  1. 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).

  2. 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.

  3. 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.

  4. 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.

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

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