file:cvpro_part_2_ia.htm

A. Attachment

1. Definition

A writ of preliminary attachment is a provisional remedy issued upon order
of the court where an action is pending to be levied upon the property or
properties of the defendant therein, the same to be held thereafter by the
sheriff as security for the satisfaction of whatever judgment might be secured
in said action by the attaching creditor against the defendant.286

2. Concept and Purpose.

Attachment is a juridical institution which has
for its purpose to secure the outcome of the trial, that is, the satisfaction
of the pecuniary obligation really contracted by a person or believed to have
been contracted by him, either by virtue of a civil obligation emanating from
contract or from law, or by virtue of some crime or misdemeanor that he might
have committed, and the writ issued, granted it, is executed by attaching and
safely keeping all the movable property of the defendant, or so much thereof as
may be sufficient to satisfy the plaintiff’s demands.287

The chief purpose of the remedy of attachment is to
secure a contingent lien on defendant’s property until plaintiff can, by
appropriate proceedings, obtain a judgment and have such property applied to
its satisfaction, or to make some provision for unsecured debts in cases
where the means of satisfaction thereof are liable to be removed beyond the
jurisdiction, or improperly disposed of or concealed, or otherwise placed
beyond the reach of creditors.288

3. Nature and Scope: Attachment Purely Statutory

Attachment is not a distinct proceeding in the nature of an action in rem
but it is a proceeding to an action of law, designed to secure the payment of
any judgment the plaintiff may obtain.

Attachment, as a provisional remedy, is purely a statutory one. It does not
exist unless expressly granted by the statute. It is therefore not available
except in those cases where the statute expressly permits.289
For this purpose, the party seeking an attachment must show that a sufficient
cause of action exists and that the amount due him as much as the sum for which
the order of attachment is sought.290

4. Strict Compliance with the Rule

The rule on the issue of a writ of attachment must be construed strictly in
favor of the defendant. If all the requisites for the issuance of the writ are
not present, the court, which issues it acts in excess of jurisdiction.291 It should be issued only on concrete
and specific grounds.292

5. Attachment to Acquire Jurisdiction Over the Res

Attachment is intended to confer jurisdiction by the court over the res.
When real property of a non-resident defendant located in Philippines is
attached to answer for the claim of the plaintiff, the court acquires
jurisdiction over the res and in that event, the jurisdiction over the
person of said defendant is not essential.293

6. Stages in the Issuance of the Writ

The grant of the provisional remedy of attachment practically involves three
(3) stages: first, the court issues the order granting the application; second,
the writ of attachment issues pursuant to the order granting the writ; and
third, the writ is implemented. For the initial two stages, it is not necessary
that jurisdiction over the person of the defendant should first be obtained.
However, once the implementation commences, it is required that the court must
have acquired jurisdiction over the defendant for without such jurisdiction,
the court has no power and authority to act in any manner against the
defendant. Any order issuing from the court will not bind the defendant.294

A preliminary attachment is a rigorous remedy which exposes the debtor to
humiliation and annoyance, such that it should not be abused to cause
unnecessary prejudice. It is, therefore, the duty of the court, before issuing
the writ, to ensure that all the requisites of the law have been complied with;
otherwise, the judge acts in excess of its jurisdiction and the writ so issued
shall be null and void.295

The affidavit must establish that:

1) a sufficient cause of action exists;

2) the case is one of those mentioned in Rule 57,
Section 1;

3) there is no sufficient security for the claim
sought to be enforced by the action;

4) the amount due to the applicant is as much as
the sum for which the order is granted above all legal counterclaims.

Failure of the affidavit to show that there is no other sufficient security
for the claim sought to be enforced by the action, that the said amount due to the
plaintiff above all legal set-offs or counterclaim is as much as the sum for
which the order is sought renders that application fatally defective.296

Whether or not the affidavit sufficiently established facts therein stated
is a question to be determined by the court in the exercise of sound
discretion. The mere filing of an affidavit reciting the facts required by the
above provision is not sufficient to compel the judge to grant the writ. It all
depends upon the amount of credit given it by the judge who may accept or
reject it in the exercise of his discretion.297

7. Orders granting or denying provisional remedies are
merely interlocutory and cannot be the subject of an appeal. They may however
be challenged before a superior court through a petition for certiorari
under Rule 65.

8. Important Jurisprudential Rules

8.1 The purposes of preliminary
attachment are:

1) to seize the property of the debtor in advance
of final judgment and to hold it for purposes of satisfying the said judgment;
or

2) to enable the court to acquire jurisdiction
over the action by the actual or constructive seizure of the property in those
instances where personal service of summons on the creditor cannot be effected.298

Thus, a proceeding in attachment is in rem
where the defendant does not appear, and in personam where he appears in
the action.299 Where a
lien already exists, e.g. a maritime lien, the same is equivalent to an
attachment, 300just like that under
a real estate mortgage.

8.2 Rule on Prior or Contemporaneous
Jurisdiction

Although a writ of preliminary attachment may be
issued ex-parte or even before service of summons on the defendant, it
cannot however be implemented until the court has acquired jurisdiction over
the person of the defendant.301

8.3 When the ground relied upon in
asking for preliminary attachment is impending fraudulent removal,
concealment and disposition of defendant’s property under paragraphs (d) and
(e) of Section 1, Rule 57, the court should either conduct a hearing or require
the submission of counter-affidavits from the defendant to gather facts in
support of the allegations of fraud.302

8.4 Preliminary attachment
may be granted in an action for a specified amount even when the claim is
unliquidated other than for moral and exemplary damages.303

8.5 If a property has been
levied upon by virtue of a writ of preliminary attachment, it becomes one under
custodia legis and a subsequent extrajudicial foreclosure of said
property by a third-party mortgagee does not affect the lien created by the attachment.304

8.6 A foreign corporation duly
licensed to do business in the Philippines is not a non-resident within the
meaning of Section 1(f), Rule 57; hence, its property here may not be attached
on the mere ground that it is a non-resident.305
Insolvency of the defendant debtor is not a ground ofr the issuance of a writ
of preliminary attachment.306
Section 1(f), concerning summons by publication, refers to those cases in
Sections 14 and 16 of Rule 14.

8.7 Property exempt from
execution is also exempt from preliminary attachment or garnishment.307 Garnishment does not lie against the
funds of the regular departments or offices of the Government, but funds of
public corporations are not exempt from garnishment.308