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Civil Procedure > RULE 57: PRELIMINARY ATTACHMENT > Flashcards

RULE 57: PRELIMINARY ATTACHMENT Flashcards

1
Q

Define Attachment

A

Attachment is a provisional remedy by which the property of an adverse party is taken into legal custody, either at the commencement of an action or at any time thereafter, as a security for the satisfaction of any judgment that may be recovered by the plaintiff or any proper party.

For general audience: Attachment is a legal process that allows a plaintiff or other party to take possession of property belonging to the defendant as a form of security. This can happen at the beginning of a legal case or at any point during the process. It ensures that the plaintiff or other parties will be able to collect any money they are awarded if they win the case.

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2
Q

Is preliminary attachment a statutory remedy?

A

Yes, preliminary attachment is purely a statutory remedy. it cannot exist without a statute granting it. it’s legal basis for application are the Rules of Court and the Civil Code of the Philippines.

For general audience: Preliminary attachment is a legal remedy that allows a creditor to go after a debtor’s property. It’s only possible because there are laws that allow it. These laws are found in both the Rules of Court and the Civil Code of the Philippines.

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3
Q

Give an example of a situation involving preliminary attachment.

A

A filed an action to collect a sum of money from B, who is about to leave the country, with a clear intent to defraud his creditor. Here, the action for collection
may be coupled with an application for issuance of a writ of preliminary attachment directed against the property of B in order to prevent him from disposing of his property during the pendency of the litigation.

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4
Q

What happens when the writ of preliminary attachment is issued?

A

When the writ is issued, the property of the adverse party would be then put under custodia legis (custody of law) to be held by the court for the satisfaction of whatever award which may be obtained by the applicant.

For general audience: When a legal order is given, the property of the opposing party is placed under the control of the court. This is done to ensure that any compensation awarded to the requesting party can be paid for using the property of the opposing party.

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5
Q

Can preliminary attachment be subject of a separate action?

A

No. Preliminary attachment itself cannot be the subject of a separate action independent of the principal action because the attachment is only an incident of such action. It is not a distinct proceeding and can only be availed of during the pendency of a principal action because it is a mere provisional remedy.

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6
Q

What is the purpose of a preliminary attachment?

A

(1) to seize the property of the debtor in advance of final judgment and to hold it for the purpose of satisfying said judgment; or (2) to acquire jurisdiction over the action by actual or constructive seizure of the property in those instances where personal or substituted service of summons on the defendant cannot be effected.”

As declared by the SC in Philippine Commercial International Bank v Alejandro

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7
Q

When can an order and writ of preliminary attachment may be applied for?

A
  1. At the commencement of the action; or
  2. At any time before the entry of judgment.
    (3. After the service of summons on the defendant)
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8
Q

What are the three kinds of attachments?

A
  1. Preliminary attachment
  2. Garnishment
  3. Levy on execution
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9
Q

What are the grounds for the issuance of a writ of preliminary attachment?

A
  1. Recovery of a specified amount of money or damages
  2. Action for money or property embezzled
  3. Recovery of property unjustly or fraudulently taken
  4. Fraud in contracting and performing and obligation
  5. Removal or disposal of property with intent to defraud
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10
Q

What are the two elements that must be present for a writ under the ground of removal or disposal of property with intent to defraud to prosper?

A
  1. A party has removed or disposed of his property or is about to do so
  2. The act must be done with intent to defraud the creditor

The act must be shown also to have been done with the intent to defraud the creditor.

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11
Q

Which persons cannot be served by publication?

A
  1. Resident defendants whose identity or whereabouts are unknown
  2. Resident defendants who are temporarily out of the country
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12
Q

What are the contents of the affidavit?

A
  1. Must state that a sufficient cause of action exists;
  2. Must state that the case is one of those mentioned in Section 1, Rule 57;
  3. Must state that there is no other sufficient security for the claim sought to be enforced by the action; and
  4. Must state that the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims.
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13
Q

What happens if there is failure to allege in the affidavit the requisites prescribed for the issuance of a writ
of preliminary attachment?

A

It renders the writ fatally defective, and the judge issuing it is deemed to have acted in excess of his jurisdiction.

There must be a showing of insufficiency of the security for the claim sought to be enforced by the applicant or else the writ will not be issued if a real estate mortgage exists to secure the obligation even if an action for a sum of money was filed.

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14
Q

What are the stages in granting preliminary attachment?

A
  1. Court issues the order granting the application
  2. Writ of attachment issues pursuant to the order granting the issuance of the writ
  3. Writ is implemented
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15
Q

What must be served on the defendant before a levy on attachment can be made by the sheriff?

A
  1. Service of summons;
  2. Copy of the complaint;
  3. Application for attachment;
  4. Applicant’s affidavit and bond; and
  5. Order and writ of attachment

It is apparent that the service mentioned is necessary to acquire jurisdiction over the person of the defendant before the writ is implemented and to comply with the due process requirements of the law.

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16
Q

When does the requirement of prior or contemporaneous service not apply?

A
  1. If the summons could not be served personally despite diligent efforts;
  2. The summons could not be served by substituted service despite diligent
    efforts;
  3. The defendant is a resident of the Philippines temporarily absent
    therefrom;
  4. The defendant is a non-resident of the Philippines; and
  5. The action is one in rem or quasi in rem.
17
Q

The rule empowers a court to examine under oath the following.

A
  1. The party whose property is attached for the purpose of giving
    information respecting his property;
  2. All other persons in possession of or controlling any property or credit
    belonging to the person whose property is attached

After such examination, the court may issue an order requiring the delivery to the clerk of court any personal property capable of manual delivery, to await the judgment in action.

18
Q

Is it possible to sell the attached property after levy on attachment but before the entry of judgment in certain cases? How?

A

Yes. If the attached property is perishable; or if the interests of all the parties to the action will be subserved by the sale of the attached property.

19
Q

How can a writ of attachment that has already been enforced be discharged?

A
  1. By filing a motion to discharge the attachment and making a deposit or
    counter-bond;
  2. By filing a motion to set aside or discharge the attachment on other
    grounds without need for filing a counter-bond

After due notice and hearing, the court shall direct that the attachment be discharged. The rule does not authorize a discharge of the attachment ex-parte.

20
Q

What are the grounds on which the motion to discharge shall be based?

A
  1. The attachment was improperly or irregularly issued or enforced;
  2. Bond is insufficient;
  3. Attachment is excessive;
  4. Property is exempt from execution and, as such, is also exempt from
    preliminary attachment

The motion may be filed before the levy, after the levy, or even after the release of the attached property

21
Q

What are the possible remedies available to someone whose property has been attached by the sheriff?

A
  1. Making an affidavit of his title thereto or his right to the possession of the property (terceria);
  2. Invoke the court’s authority in the same case and move for a summary hearing on his claim;
  3. File a motion for intervention
  4. File a separate action to nullify the levy with damages resulting from the unlawful levy and seizure.
22
Q

What is the procedure for satisfying the judgment of the property attached?

A
  1. Paying the judgment obligee the proceeds of all sales of perishable or other property sold
  2. If any balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff’s hands, or in those of the clerk of court;
    and
  3. By collecting from all persons having in their possession credits belonging to the judgment obligor, or owing debts to the latter at the time of the attachment of such credit and debts as determined by the court in action, and as stated in the judgment, and paying the proceeds of such collection over to the judgment obligee.
23
Q

Explain what happens when there is wrongful attachment?

A

Where there is wrongful attachment, the attachment defendant may recover actual damages even without proof that the attachment plaintiff acted in bad faith in
obtaining the attachment. However, if it is alleged and established that the attachment was not merely wrongful but also malicious, the attachment defendant
may recover moral damages and exemplary damages as well.

wrongful attachment → actual damages even w/o proof of bad faith → wrongful & malicious → moral & exemplary damages

24
Q

What are the requisites for the issuance of a writ of attachment?

A
  1. Case must be any of those where preliminary attachments is proper
  2. Applicant must file a motion
  3. Must show by affidavit that there is no sufficient security for the claim sought to be enforced
  4. Applicant must post a bond
25
Q

One may prevent attachment by either:

A
  1. Depositing w/ the court an amount equal to the property being attached
  2. Giving a counter-bond in an amount equal to the bond posted by the latter to secure the attachment

Civil Procedure (4 decks)

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