Rule 57

Preliminary Attachment
What is a writ of preliminary attachment?

 A writ of preliminary attachment is defined as 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 (Adlawan v. Tomol, 184 SCRA 31
[1990] citing Virata v. Aquino, 53 SCRA 30-31 [1973])
 It must be emphasized that the grant of the provisional remedy of
attachment practically involves three 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.
When: At any time before the entry of judgment
Who : by the Plaintiff or any proper party
What : the property of the adverse party
Property in the Philippines, not exempt
from execution- (Sec 2)
Why : Attached as security for the satisfaction
of any judgment that may be recovered
In what cases applicable:

 1) In an action for the recovery of a specified amount of money or damages

 2) In an action for money or property embezzled or fraudulently misapplied or converted
 By Public Officer
 Officer of the Company
 Agent
 Clerk
In the course of their employment
 Any person In a fiduciary capacity
3) In an action to recover the possession of property unjustly or fraudulently taken
when the property, or any part thereof, has been concealed removed, or disposed of to prevent its being
found

4) In an action against a party who has been guilty of a fraud in contracting the debt

5) 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;

6) ) 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
Section 2 - Issuance and contents of order
 May be issued:
Ex parte
On motion with notice and hearing

By the court in which the action is pending

By the Court of Appeals
By the Supreme Court

Stages:
1) Order of Preliminary Attachment
2) Writ of Preliminary attachment
3) Implementation of Writ
 Several writs may be issued at the same time to the sheriffs of
the courts of different Jurisdiction(Sec 2)

 It is clear from our pronouncements that a writ of preliminary attachment

may issue even before summons is served upon the defendant. However,
we have likewise ruled that the writ cannot bind and affect the defendant.
However, we have likewise ruled that the writ cannot bind and affect the
defendant until jurisdiction over his person is eventually obtained.
Therefore, it is required that when the proper officer commences
implementation of the writ of attachment, service of summons should be
simultaneously made.
(G.R. No. 102448 August 5, 1992 Ricardo Cuartero vs. CA)
Requirement of Issuance – Section 3
 1) Affidavit
 2) Bond

Bond requirements – Section 4

Amount fixed by the court

Purpose of bond – Section 4

the applicant will pay all the costs which may be adjudged to the adverse party and all damages
which he may sustain by reason of the attachment, if the court shall finally adjudge that the
applicant was not entitled to his claim.

Bond is not applicable if the issuance of writ is in favor of the Republic of the Philippines – (Sec
14)
Section 5- Manner of attaching the Property

 The sheriff shall attach without delay and with all reasonable diligence
 Property within the Philippines, exempt from execution
 No levy on attachment pursuant to the writ issued under section 2 hereof shall be
enforced unless it is preceded, or contemporaneously accompanied, by service of
summons, together with a copy of the complaint, the application for attachment, the
applicant s affidavit and bond, and the order and writ of attachment, on the defendant
within the Philippines
Exemption of Contemporaneous Service of
Summon
 The requirement of prior or contemporaneous service of
summons shall not apply where the summons could not be served
personally or by substituted service despite diligent efforts, or the
defendant is a resident of the Philippines temporarily absent
therefrom, or the defendant is a non-resident of the Philippines, or
the action is one in rem or quasi in rem
Section 6- Sheriff Return (before execution)
 Complete statement
 Inventory of property together with a counter bond if any, serve a copies thereof to the
applicant

Section 15- Sheriff Return (after execution)

 The sheriff shall forthwith make a return in writing to the court of his proceedings under
this section and furnish the parties with copies thereof.

This is the proceeding of the Sheriff for the sale and execution of the property for the
satisfaction of the Judgment under Section 15.
Section 7 – Attachment of Real and Personal
Property
 Real property or growing crops – in the records of the registry of deeds
 Personal property capable of manual delivery -Taking and safely keeping
 Stocks or shares of – leaving the copy of writ to the President of the Company
 Debts and Credit, incuding bank deposits – leaving with the authorized person a copy of
the writ and notice of debt (garnishment)
 Property belonging to the estate of the decedent – whether as heir, legatee or devisee, By
serving the executor or administrator a copy of the writ
 Property under custodia legis – copy of writ shall be filed with the propert court and notice
of attachment to the the custodian.
Section 12- Discharge of attachment

Filing of Counter Bond or Cash Deposit

How: By Motion of the affected party
 File a motion for the discharge of the attachment wholly or partly
 After notice and hearing
 Order of the court for the discharge

Where to file:
To the clerk of court where the application of preliminary attachment is made

Amount fixed by the court

Notice shall be serve to the attaching party
Purpose of counter bond

 To answer for the release of the attached property

 Should such counter-bond for any reason be found to be or become insufficient, and the
party furnishing the same fail to file an additional counter-bond, the attaching party may
apply for a new order of attachment.
Section 13- Discharge of attachment on other
ground
 File a motion
 In a court where the action is pending
 Grounds:
1) Improper attachment,
2) Writ is irregularly issued or enforced
3) Insufficiency of Bond requirements

Excessive attachment – the discharge shall only apply to the excess

 After notice and hearing
 Attaching party may oppose the motion by counter-affidavits or other evidence in addition to that on
which the attachment is made.
If the property is claimed by the third party -
Section 14
 File an affidavit of his title thereto
 Stating the grounds
 Serves to the sheriff while the sheriff is in possession of the property
 And a copy thereto to the attaching party

 the sheriff shall not be bound to keep the property under attachment, unless the
attaching party or his agent, on demand of the sheriff, shall file a bond approved by the
court to indemnify the third-party claimant
Damages in case of improper, irregular or excessive
attachment
 The sheriff shall not be liable for the damages in the performance of his duty of taking and safe
keeping the property (Section 14)
 Damages may still be filed against the attaching party (Section 14 and 20)
 No claim for damages for the taking or keeping of the property may be enforced against
the bond unless the action therefor is filed within one hundred twenty (120) days from the
date of the filing of the bond (Section 14)

 Before the Trial Court - After notice to the attaching party and hearing (Sec.20)

 Filing to the Court of Appeals – if the decision of the Court of Appeals is favorable to the
adverse party
Before the judgment becomes executory
The CA may allow the application be heard and decided by the Trial Court