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 PROVISIONAL REMEDIES

What are provisional remedies?

 They are those to which parties litigant may resort for the

preservation or protection of their rights or interest, and for no

other purpose during the pendency of their action. They are

applied to a pending litigation, for the purpose of securing the

 judgment or preserving the status quo, and in some cases after

 judgment, for the purpose of preserving or disposing of the

subject matter.

What are the diferent kinds o provisional remedies?

1. Attachment

2. Preliminary injunction

. !eceivers

". !eplevin#delivery of private property

$. Alimony pendente lite

%. &eposit during the pendency of an action

R!LE "#

PRELIMINAR$ A%%A&'MEN%

Se(tion )* +ro,nds ,pon -hi(h atta(hment ma. iss,e. At

the commencement of the action or at any time before entry of

 judgment, a plainti' or any proper party may have the property

of the adverse party attached as security for the satisfaction of

any judgment that may be recovered in the following cases())) ))) )))

What is preliminar. atta(hment?

A preliminary attachment may be de*ned, paraphrasing the

!ules of +ourt, as the provisional remedy in virtue of which a

plainti' or other party may, at the commencement of the action

or at any time thereafter, have the property of the adverse party

taen into the custody of the court as security for the

satisfaction of any judgment that may be recovered. -t is a

remedy which is purely statutory in respect of which the law

requires a strict construction of the provisions granting it. ithal

no principle, statutory or jurisprudential, prohibits its issuance

by any court before acquisition of jurisdiction over the person of

the defendant. (Davao Light vs. CA, G.R. No. 93262

December 29, 1991)

Attachment is a harsh, e/traordinary and summary remedy and

the rules governing its issuance must be construed strictly

against the applicant. 0erily, a writ of attachment can only be

granted on concrete and speci*c grounds and not on general

averments quoting perfunctorily the words of the !ules.

What is the p,rpose o preliminar. atta(hment?

 The chief purpose of the remedy of attachment is to secure a

contingent lien on defendant's property until plainti can, by

appropriate proceedings, obtain a judgment and have such

 property applied to its satisfaction, or to mae 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 (Chemphi vs. CA, G.R. Nos.

112!3"#39 December 12, 199$).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 e/ecuted by attaching and safely

eeping all the movable property of the defendant, or so much

thereof as may be sucient to satisfy the plainti's demands.

(G%&ma' v. Catoico, et a., 6$ hi. 2$).

P&I/ vs* ALE0ANDRO

+*R* No* )#""1# Septem2er 3)4 355#

3eld( %he p,rposes o preliminar. atta(hment are6

415 to sei6e the property of the debtor in advance of *nal

 judgment and to hold it for purposes of satisfying said judgment,

as in the grounds stated in paragraphs 4a5 to 4e5 of 7ection 1,

!ule $8 of the !ules of +ourt9 or

425 to acquire jurisdiction over the action by actual or

constructive sei6ure of the property in those instances where

personal or substituted service of summons on the defendant

cannot be e'ected, as in paragraph 4f5 of the same provision.&ALO vs* ROLDAN

+*R* No* L73"3 Mar(h 854 )9:;

Can a provisional remedy be issued to for another purpose? Say

an action of preliminary injunction, can it be issued in order to

quiet title to property :

3eld( ;o. The provisional remedies denominated attachment,

preliminary injunction, receivership, and delivery of personal

property, provided in !ules $<, %=, %1, and %2 of the !ules of

+ourt, respectively, are remedies to which parties litigant may

resort for the preservation or protection of their rights or

interest, and or no other p,rpose4 during the pendency of

the principal action. -f an action, by its nature, does not require

such protection or preservation, said remedies cannot be

applied for and granted. %o ea(h kind o a(tion or a(tions a

proper provisional remed. is provided or 2. la-* %he

R,les o &o,rt (learl. spe(i. the (ase in -hi(h the. ma.

2e properl. <ranted*

Atta(hment ma. 2e iss,ed onl. in the (ase or a(tions

spe(i=(all. stated in se(tion )4 R,le "9 , in order that the

defendant may not dispose of his property attached, and thus

secure the satisfaction of any judgment that may be recovered

by plainti' from defendant.

Who ma. appl.?

1. A plainti' or proper party

2. A defendant in a counterclaim

&ALO vs* ROLDAN

+*R* No* L73"3 Mar(h 854 )9:;

Can a plainti attach a property under his possession?3eld( >f course not? @ou cannot attach something which is in

your hands. The property or fund must, therefore be in litigation

according to the allegations of the complaint, and the object of

appointing a receiver is to secure and preserve the property or

thing in controversy pending the litigation. >f course, if it is not

in litigation and is in actual possession of the plainti', the latter

can not apply for and obtain the appointment of a receiver

thereof, for there would be no reason for such appointment.

When to 2e applied?

1. At the commencement of the action

2. Anytime before entry of judgment 4-f there is now an entry of

 judgment, attachment no more availing but a writ of e/ecution

shall be proper5.

No- -e <o to the <ro,nds6

4a5 -n an action for the recovery of a speci*ed amount of money

or damages, other than moral and e/emplary, on a cause of

action arising from law, contract, quasicontract, delict or quasi

delict against a party who is about to depart from the Philippines

which intent to defraud his creditors9

What m,st 2e sho-n ,nder this <ro,nd?

-t must be shown that the defendant is about to depart from the

Philippines with intent to defraud his creditors.

>O +LASS vs* VALEN!ELA

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+*R* No* L7:1#"; Septem2er ))4 )913

Pin6on however, did not allege that the defendant Eenneth >.

Flass Gis a foreigner 4who5 may, at any time, depart from the

Philippines with intent to defraud his creditors including the

plainti'.G 3e merely stated that the defendant Eenneth >. Flass

is a foreigner. There being no showing, much less an allegation,

that the defendants are about to depart from the Philippines

with intent to defraud their creditor, or that they are non

resident aliens, the attachment of their properties is not

 justi*ed.

P&I/ vs* ALE0ANDRO

+*R* No* )#""1# Septem2er 3)4 355#

B/ecutive 0ice President !B0-HHA, personally transacted with

defendant mainly through defendantIs permanent residence in

CBT!>CA;-HA, either in defendantIs home address in Jue6on

+ity or his main business address at the !>CKH> CALA;TA

LKB;A0B;TK!A 7A@>+ M &BH>7 A;FBHB7 in CAEAT- and while

at times follow ups were made through defendantIs temporary

home and business addresses in 3ongong. -t is therefore clear

that plainti' could not deny their personal and ocial

nowledge that defendantIs permanent and ocial residence for

purposes of service of summons is in the Philippines.

-t is obvious that plainti' already new from the beginning the

de*ciency of its second ground for attachment Ni.e.,O disposing

properties with intent to defraud his creditors, and therefore

plainti' had to resort to this misrepresentation that defendant

was residing out of the Philippines and suppressed the fact that

defendantIs permanent residence is in CBT!> CA;-HA where he

could be served with summons.

!nli@,idated Dama<es

!KHB( A writ of preliminary attachment may not issue if the

claim for damages is unliquidated or contingent. Also, it may not

issue when the amount of money or damages is not speci*ed.

+ENERAL vs* DE VENE&IA

+*R* No* L719: 0,l. 854 )9:#

>n the question of validity of the attachment, Gthe general rule

is that, unless the statute e/pressly so provides, the remedy by

atta(hment is 'ot avaiabe in respe(t to a demand -hi(h

is not d,e and pa.a2le, and if an attachment is issued upon

such a demand without statutory authority it is void.G-t must be observed that under our rules governing the matter

the person seeing a preliminary attachment must show that Ga

sucient cause of action e/istsG and that the amount due him is

as much as the sum for which the order of attachment is

grantedG. -nasmuch as the commitment of Huis . Feneral has

not as yet become demandable, there e/isted no cause of action

against him, and the complaint should have been dismissed and

the attachment lifted.

MIAL'E vs* DE LEN&!ESAIN+

+*R* No* L7;##)" 0,l. ))4 )91;

hile it is true that from the aforequoted provision attachment

may issue "in an action against a party ho resides out of the

!hilippines, " irrespective of the nature of the action or suit, and

while it is also true that in the case of Cu njieng, et al vs. #lbert, $Q Phil. "<$, it was held that Geach of the si/ grounds

treated ante is independent of the others,G still it is

imperative that the amo,nt so,<ht 2e li@,idated*

INS!LAR SAVIN+S /AN> vs* &A

+*R* NO* )38;81 0,ne )"4 355"

Should e$emplary damages, legal interest, attorney%s fees and

e$penses of litigation be factored in the determination of the

defendant%s counterbond?

3eld( ;o. Turning to the case at bar, the records show that the

principal claim of respondent, as plainti' a quo, is in the amount

of P2$,2==,===.==, representing the three 45 unfunded checs

drawn against, and presented for clearing to, respondent ban.

 Rurisprudence teaches that a -rit o atta(hment (annot 2e

iss,ed or moral and eBemplar. dama<es4 and other

,nli@,idated or (ontin<ent (laim*

e refer to the fact that the attachment respondent applied for

and the corresponding writ issued was only for the amount of

P2$.2 Cillion. !espondent, it bears to stress, did not pray for

attachment on its other claims, contingent and unliquidated as

they were. Then, too, the attaching writ rightly e/cluded such

claims.

4b5 -n an action for money or property embe66led or fraudulently

misapplied or converted to his own use by a public ocer, or an

ocer of a corporation, or an attorney, factor, broer agent, or

cler, in the course of his employment as such, or by other

person in a *duciary capacity, or for a willful violation of duty9

What m,st 2e sho-n ,nder this <ro,nd?

Allegations of fraud, embe66lement and misappropriation should

be substantiated and be based on concrete and speci*c

grounds. here the grounds for attachment are couched in

general terms,

the adverse party should be given an opportunity to ventilate

their side in a hearing.

%AN vs* AND!E%A

+*R* No* L7:8#3) 0,ne )"4 )98"

acts( Two persons owned a sweepstaes ticet that won a pri6e.

3owever, the other one appropriated the entire pri6e to himself.

-ssue( Cay a writ of preliminary attachment be issued on such

situation:

3eld( @es. >nehalf thereof did not belong to him to said

respondent. 3e was merely a depositor. or a<ent o the

latter as to said hal , and that the petitioner acted in the

manner stated notwithstanding the fact that he was required to

turn over to the respondent the part of the pri6e won

corresponding to the latter.

OLSEN C &O* vs* OLSEN

+*R* No* L73838# Novem2er ):4 )93"

&( a rit may issue against a president, treasurer and

general manager ho ithout authori)ation ta*es money from

the corporation?3eld( @es. 3aving, as he had, absolute and almost e/clusive

control over the function of the corporation and its funds by

virtue of his triple capacity as president, treasurer and general

manager, the defendantappellant should have been more

scrupulous in the application of the funds of said corporation to

his own use. As a trustee of said corporation, it was his duty to

see by all legal means possible that the interests of the

stocholders were protected, and should not abuse the

e/traordinary opportunity which his triple position o'ered him to

dispose of the funds of the corporation. >rdinary delicacy

required that in the disposition of the funds of the corporation

for his personal use, he should be very careful, so as to do it in

such a way as would be compatible with the interest of the

stocholders and his *duciary character.4c5 -n an action to recover the possession of property unjustly or

fraudulently taen, detained or converted, when the property, or

any part thereof, has been concealed, removed, or disposed of

to prevent its being found or taen by the applicant or an

authori6ed person9

Se(tion )( vs* Replevin

-n this case, the personal property belongs to the defendant and

the plainti' sees to attach it to secure the satisfaction of any

 judgment that he may recover from the defendant. -n replevin,

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however, the plainti' sees to recover possession of personal

property belonging to him.

&on(ealment and Removal

+oncealment is the physical hiding or secretin of property so

that it cannot be sei6ed to satisfy creditorIs claims. !emoval is

the actual physical removal by the debtor.

Atty Tiu( This contemplates only personal property. >f course

you cannot Shide or Sconceal a real property.

 Rustice eria( 7ection 14c5 refers to both real and personal

properties that are unjustly or fraudulently taen, detained or

converted.

SAN%OS vs* /ERNA/E

+*R* No* L78));8 Novem2er ;4 )939

acts( Lernabe owns a warehouse. -n his warehouse, 7antos

deposited 88Q cavans and Q ilos of palay and Tiongson

deposited 1,=2% cavans and < ilos of palay. Tiongson *led a

case against Lernabe to recover from him his palay, and ased

for a writ of attachment. ;ow, <2" cavans were sei6ed. +omes

now is 7antos who claims that he must be allowed to intervene

in the attachment. 7antos is saying now that Tiongson cannot

claim the <2" cavans because in asing so, Tiongson is in e'ect

saying that the cavans of rice belong to Lernabe and not to him.

-ssue( -s 7antos correct:

3eld( @es, he is correct. Cali yung ginawa ng abogado ni

 Tiongson. hy would you *le attachment ung sayo naman pala

yung palay: -n attachment, the personal property belongs to the

defendant and the plainti' sees to attach it to secure the

satisfaction of any judgment that he may recover from the

defendant. Although it was not said in the case, dapat the

remedy should have been replevin.

Lut the court liberally construed the provisions of the law in this

case. -t said that the -rit o atta(hment applied or 2.

Pa2lo %ion<son a<ainst the propert. o 0ose &* /erna2e

ma. 2e (onstr,ed as a (laim or the deliver. o the sa(ks

o pala. deposited 2. the ormer -ith the latter*

4d5 -n 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 thereof9

Proper grounds(

1. raud in the contracting of obligation 4-f at the time ofcontracting it, the debtor has a preconceived plan or intention

not to pay5

2. raud in the performance of the obligation

-mproper grounds(

1. -nsolvency

2. Cortgaging subject property

S%A%E INVES%MEN% 'O!SE vs* &A

+*R* No* 13::; 0,l. 394 )911

-ssue( >; the impairment of the ' collaterals is sucient for

the issuance of a writ(

N1O shares of stoc pledged as security and their subsequent

decline in valueN2O parcels of land mortgaged to creditor who were worth less

their supposed value

NO postdated checs who bounds

3eld(

N1O ith respect to the shares of stoc which the respondents

pledged as additional security for the loan, the de(line in their

val,e did not mean that the private respondents entered

into the

loan transa(tion in 2ad aith or -ith ra,d,lent intent*

or the private respondents could not have foreseen how the

stocs would fare in the maret. And if the petitioner thought

they were worthless at the time, it should have rejected them as

collateral.

N2O ith respect to the two parcels of land which were

mortgaged to the petitioner, the latter sho,ld also have

de(lined to a((ept them as (ollateral if it believed they

were worth less than their supposed value.

NO ith respect to the two postdated checs which bounced,

the +ourt of Appeals observed that since the. -ere sold to

the petitioner ater the loan had 2een <ranted to private

respondents, their issuance did not fraudulently induce the

petitioner to grant the loan applied for. They were Gmere

evidence of the private respondentsG standing loan obligation to

the petitionerG or Gmere collaterals for the loan granted by the

petitioner to the private respondentsG

7tate -nvestment failed to prove during the hearing of private

respondents motion to lift the preliminary writ of attachment,

that P.>. 0alde6, -nc. received from it independent consideration

for the GsaleG of Pedro 0alde6 checs to it, apart from the loans

previously e/tended to the corporations.

A/OI%I vs* &O%A/A%O /!S &OMPAN$

+*R* No* L78"995 0,ne )#4 )91)

+s insolvency a ground for the issuance of the rit?

3eld( ;o. The dwindling of respondents ban account despite its

daily income of from P1=,===.== to P1",===.== is easily

e/plained by its having to meet heavy operating e/penses,

which include salaries and wages of employees and worers. -f,

indeed the income of the company were suciently pro*table, it

should not allow its buses to fall into disuse by lac of repairs. -t

should also maintain a good credit standing with its suppliers of

equipment, and other needs of the company to eep its

business a going concern. Petitioner is only one of the suppliers.

 The several buses attached are nearly juns. 3owever, upon

permission by the sheri', *ve of them were repaired, but they

were substituted with *ve buses which were also in the same

condition as the *ve repaired ones before the repair. This cannot

be the removal intended as ground for the issuance of a writ of

attachment under section 1 4e5, !ule $8, of the !ules of +ourt.

 The repair of the *ve buses was evidently motivated by a desire

to serve the interest of the riding public, clearly not to defraudits creditors, as there is no showing that they were not put on

the run after their repairs, as was the obvious purpose of their

substitution to be placed in running condition.

4e5 -n an action against a party who has removed or disposed of

his property, or is about to do so, with intent to defraud his

creditors9

What m,st 2e sho-n ,nder this <ro,nd?

Actual transfer is not necessary as a mere design to dispose

property and intent to carry it out is sucient. The removal or

disposal of property must have been made with intent to

defraud the creditors to justify preliminary attachment. Cere

removal is not enough.

 The factual basis on defendantIs intent to defraud must be

clearly alleged in the adavit in support of the prayer for thewrit of attachment if not so speci*cally alleged in the veri*ed

complaint. A bare allegation does not suce.

'earin< ne(essar.

here the question of fraudulent disposal is put in issue, the

parties must be given the opportunity to prove their respective

claims or, at the very least, the defendant should be given the

chance to show that he has not been disposing of his property in

fraud of creditors.

PEOPLES /AN> and %R!S% &OMPAN$ vs* S$VEL

+*R* No* L739315 A,<,st ))4 )911

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o do you prove intent to defraud?

3eld( Intent to dera,d ma. 2e and ,s,all. is inerred

rom the a(ts and (ir(,mstan(es o the (aseF it (an

rarel. 2e proved 2. dire(t eviden(e* -t may be gleaned also

from the statements and conduct of the debtor, and in this

connection, the principle may be applied that every person is

presumed to intend the natural consequences of his acts.

 The act of debtor in taing his stoc of goods from the rear of his

store at night, is sucient to support an attachment upon the

ground of the fraudulent concealment of property for the

purpose of delaying and defrauding creditors. The court is

impressed Gthat not only has the plainti' acted in perfect good

faith but also on facts sucient in themselves to convince an

ordinary man that the defendants were obviously trying to spirit

away a port9.on of the stocs of 7yvels -ncorporated in order to

render ine'ectual at least partially any judgment that may be

rendered in favor of the plainti'.

ADLAWAN vs* %ORRES

+*R* Nos* ;"9"#7"1 0,l. "4 )99:

&( the e$ecution of mortgage of the debtor in favour of

another person constitutes fraud su-cient for the issuance of a

rit?

3eld( ;o. %he eBe(,tion o a mort<a<e in avor o another

(reditor is not (on(eived 2. the R,les as one o the

means o ra,d,lentl. disposin< o oneGs propert.* Ly

mortgaging a piece of property, a debtor merely subjects it to a

lien but ownership thereof is not parted with. urthermore, the

inability to pay ones creditors is not necessarily synonymous

with fraudulent intent not to honor an obligation.

4f5 -n 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.

Deendants (overed ,nder this se(tion

1. ;onresident defendants who are not found in the Philippines

2. !esident defendants whose identity or whereabouts are

unnown and cannot be ascertained by diligent inquiry

. !esident defendants who are temporarily out of the

Philippines

Utae note, the abovereferred defendants may only be servedwith summons by publication in actions in rem or quasi in rem,

but not in actions strictly in personam.

I the plaintif =led an a(tion in personam4 -hat step

m,st 2e taken to 2e (overed 2. this r,le?

 The proper recourse for the plainti' is to locate properties of the

defendant and cause them to be attached under 4f5, in which

case, the attachment converts the action into a proceedings in

rem or quasi in rem. -n that instance, summons by publication

may then be deemed valid and e'ective, and jurisdiction over

the person of the defendants is e'ectively acquired.

What is the nat,re o atta(hment pro(eedin<s?

-n the case of *aba'ag vs. Gaemore, G.R. No. L#"2$ +%

2-, 19!", the court held that(

SThe main action in an attachment or garnishment suit is in remuntil jurisdiction of the defendant is secured. Thereafter, it is in

 personam and also in rem, unless jurisdiction of the res is lost as

by dissolution of the attachment. -f jurisdiction of the defendant

is acquired but jurisdiction of the res is lost, it is then purely in

 personam...a proceeding against property without jurisdiction of

the person of the defendant is in substance a proceeding in rem9

and where there is jurisdiction of the defendant, but the

proceedings against the property continues, that proceedings is

none the less necessarily in rem, although in form there is but a

single proceeding.

As the remedy is administered in some states, the theory of an

attachment, whether it is by process against or to subject the

property or e'ects of a resident or nonresident of the state, is

that it partaes essentially of the nature and character of the

proceeding in personam and not of a proceeding in rem. And if

the defendant appears the action proceeds in accordance with

the practice governing proceedings in personam. Lut were the

defendant fails to appear in the action, the proceeding is to be

considered as one in the nature of a proceedingin rem. And

where the court acts directly on the property, the title thereof

being charged by the court without the intervention of the party,

the proceeding unquestionably is one in rem in the fullest

meaning of the term.

-n attachment proceedings against a nonresident defendant

where personal service on him is lacing, it is elementary that

the court must obtain jurisdiction of the property of the

defendant. -f no steps have been taen to acquire jurisdiction of

the defendants person, and he has not appeared and answered

or otherwise submitted himself to the jurisdiction of the court,

the court is without jurisdiction to render judgment until there

has been a lawful sei6ure of property owned by him within the

 jurisdiction of the court.

&LA!DE NEON LI+'%S vs* P'IL ADVER%ISIN+

+*R* No* L78#;13 Novem2er 3;4 )983

&( petitioner, a foreign corporation, shall, in a metaphorical

sense, be deemed as "not residing in the !hilippine +slands" in

the sense in hich that e$pression ould apply to a natural

 person?

3eld( ;o. O,r la-s and H,rispr,den(e indi(ate a p,rpose

to assimilate orei<n (orporations4 d,l. li(ensed to do

2,siness here4 to the stat,s o domesti( (orporations* e

thin it would be entirely out of line with this policy should we

mae a discrimination against a foreign corporation, lie the

petitioner, and subject its property to the harsh writ of sei6ure

by attachment when it has complied not only with every

requirement of law made especially of foreign corporations, but

in addition with every requirement of law made of domestic

corporations.

+orporations, as a rule, are less mobile than individuals. This is a

specially true of foreign corporations that are carrying onbusiness by proper authority in these -slands. They possess, as a

rule, great capital which is seeing lucrative and more or less

permanent investment in young and developing countries lie

our Philippines.

S%A%E INVES%MEN% vs* &I%I/AN>

+*R* Nos* #993;73# O(to2er )#4 )99)

A orei<n (orporation li(itl. doin< 2,siness in the

Philippines4 -hi(h is a deendant in a (ivil s,it4 ma. not

2e (onsidered a 'o'#resie't -ithin the s(ope o the

le<al provision a,thoriin< atta(hment a<ainst a

deendant 'ot resii'g i' the hiippi'e /sa's* -n other

words, a preliminary attachment may not be applied for and

granted solely on the asserted fact that the defendant is a

foreign corporation authori6ed to do business in the PhilippinesV and is consequently and necessarily, Ga party who resides out

of the Philippines.G Parenthetically, if it may not be considered

as a party not residing in the Philippines, or as a party who

resides out of the country, then, logically, it must be considered

a party who does reside in the Philippines, who is a resident of

the country.

>bviously, the assimilation of foreign corporations authori6ed to

do business in the Philippines Gto the status of domestic

corporations,G subsumes their being found and operating as

corporations, hence, residing, in the country.

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. to accord defendant the opportunity to prevent attachment of 

his property

a. by the posting of a counterbond in an amount equal to the

plainti's claim in the complaint

b. dissolving it by causing dismissal of the complaint itself on

any of the grounds set forth in !ule 1%

c. demonstrating the insuciency of the applicants adavit or

bond in accordance with 7ection 1.

&!AR%ERO vs* &A

+*R* No* )53::1 A,<,st "4 )993;o notice to the adverse party or hearing of the application is

required inasmuch as the time which the hearing will tae could

be enough to enable the defendant to abscond or dispose of his

property before a writ of attachment issues. -n such a case, a

hearing would render nugatory the purpose of this provisional

remedy. The ruling remains good law. There is, thus, no merit in

the private respondents claim of violation of their

constitutionally guaranteed right to due process.

A writ of preliminary attachment may issue even before

summons is served upon the defendant. 3owever, we have

liewise ruled that the writ cannot bind and a'ect the

defendant. 3owever, we have liewise ruled that the writ cannot

bind and a'ect the defendant until jurisdiction over his person is

eventually obtained. Therefore, it is required that when the

proper ocer commences implementation of the writ of

attachment, service of summons should be simultaneously

made.

SALAS vs* ADIL

+*R* No* L7:;559 Ma. ):4 )9#9

ay the judge issue an rit e$ parte hen the plainti/applicant 

alleges that fraud has been committed?

3eld( ;o. +onsidering the gravity of the allegation that herein

petitioners have removed or disposed of their properties or are

about to do so with intent to defraud their creditors, and further

considering that the adavit in support of the pre attachment

merely states such ground in general terms, without speci*c

allegations of lances to show the reason why plainti's believe

that defendants are disposing of their properties in fraud of

creditors, it was incumbent upon respondent Rudge to givenotice to petitioners and to allow wherein evidence is them to

present their position at a to be received.

Se(* 8* AKdavit and 2ond re@,ired. An order of attachment

shall be granted only when it appears by the adavit of the

applicant, or of some other person who personally nows the

facts, that a sucient cause of action e/ists, that the case is one

of those mentioned in section 1 hereof, that there is no other

sucient security for the claim sought to be enforced by the

action, and 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. The adavit, and the bond required by the

ne/t succeeding section, must be duly *led with the court before

the order issues.Re@,isites or the iss,an(e o an order o atta(hment6

1. adavit

2. bond

&ontents o the aKdavit

An order of attachment shall be granted only when it appears by

the adavit of the applicant, or of some other person who

personally nows the facts(

1. that a sucient cause of action e/ists,

2. that the case is one of those mentioned in section 1 hereof,

. that there is no other sucient security for the claim sought

to be enforced by the action, and

". 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.

LA +RAN0A vs* SAMSON

+*R* No* :55": Septem2er ):4 )988

+s the mere 0ling of an a-davit e$ecuted in due form su-cient

to compel a judge to issue an order of attachment?3eld( ;o? The mere *ling of an adavit e/ecuted in due form is

not sucient to compel a judge to issue an order of attachment,

but it is necessary that by such adavit it be made to appear to

the court that there e/ists sucient cause for the issuance

thereof, the determination of such suciency being

discretionary on the part of the court.

>O +LASS vs* VALEN!ELA

+*R* No* L7:1#"; Septem2er ))4 )913

hile Pin6on 4applicant5 may have stated in his adavit that a

sucient cause of action e/ists against the defendant Eenneth

>. Flass, he did not state therein that Gthe case is one of those

mentioned in 7ection 1 hereof9 that there is no other sucient

security for the claim sought to be enforced by the action9 and

that the amount due to the applicant is as much as the sum for

which the order granted above all legal counterclaims.G

Efe(ts o ail,re to alle<e in the aKdavit the re@,isites

pres(ri2ed or the iss,an(e o a -rit o preliminar.

atta(hment6

)* renders the writ of preliminary attachment issued against the

property of the defendant fatally defective,

3* the judge issuing it is deemed to have acted in e/cess of his

 jurisdiction.

+!MAN vs* &A%OLI&O

+*R* No* L7:"#35 De(em2er 394 )98#

An adavit is fatally defective where it fails to comply, at least

substantially, with a statutory requirement that is shall state

that the indebtedness for which the action is brought has not

been secured by any mortgage or lien upon real or personal

property, or any pledge of personal property, or, if so secured,

that the security has become valueless.

here the statutes requires the adavit to show that defendant

is indebted to plainti' in an amount speci*ed, or that the latter

is entitled to recover such an amount, over and above all legal

payments, seto's, or counterclaims, compliance with this

requirement is essential to confer jurisdiction to issue the writ.

 The law authori6ing the issuance of a writ of preliminary

attachment should, therefore, be construed strictly in favor of

the judge should require that all the requisites prescribed by law

be complied with, without which a judge acquires no jurisdiction

to issue the writ. -f he does so in spite of noncompliance with

said requisites, he acts in e/cess of his jurisdiction and with the

writ so issued by him will be null and void. 0ARDINE MANILA vs* &A

+*R* No* ""3#3 April )54 )919

 The failure to allege in the adavit the requisites prescribed for

the issuance of the writ of preliminary attachment cannot even

be cured by amendment.

 The adavit is the foundation of the writ, and if none be *led or

one be *led which wholly fails to set out some facts required by

law to be stated therein, there is no jurisdiction and the

proceedings are null and void. Thus, while not unmindful of the

fact that the property sei6ed under the writ and brought into

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court is what the court *nally e/ercises jurisdiction over, the

court cannot subscribe to the proposition that the steps pointed

out by statutes to obtain such writ are inconsequential, and in

no sense jurisdictional.

&! !N0IEN+ vs* +ODDARD

+*R* No* 8131: Septem2er )#4 )988

here the adavit for attachment is fatally defective, the

attachment must be held to have been improperly or irregularly

issued and must be discharged, and such fatal defect cannot be

cured by amendment. The writ of attachment in this case should

therefore have been discharged.

%IN+ vs* VILLARIN

+*R* No* L7;)#": A,<,st )#4 )919

-t is not enough for the complaint to ritualistic ally cite, as here,

that the defendants are Gguilty of fraud in contracting an

obligation.G An order of attachment cannot be issued on a

general averment, such as one ceremoniously quoting from a

pertinent rule. The need for a recitation of factual circumstances

that support the application becomes more compelling here

considering that the ground relied upon is Gfraud in contracting

an obligation.G The complaint utterly failed to even give a hint

about what constituted the fraud and how it was perpetrated.

ra,d (annot 2e pres,med*

&ARLOS vs* SANDOVAL

+*R* No* )8"185 Septem2er 854 355"

 There was no sucient cause of action to warrant the

preliminary attachment, since applicant had merely alleged

general averments in order to support his prayer.

SAL+ADO vs* &A

+R No* L7""81) Mar(h 3;4 )91:

Can a creditor still opt to avail of preliminary attachment here

the debt is already secured by a mortgage?

3eld( ;o more. The reason for the rule prohibiting attachment

where indebtedness was already secured is to prevent the

secured creditors from attaching additional property and thus

tying up more of the debtorIs property than was necessary to

secure the indebtedness.

 Thus, to sustain an order of attachment, it is incumbent upon

the plainti' to establish either of these two facts(

1. that the obligation had not been secured originally2. that if secured at its beginning, the security later became

valueless.

Se(* :* &ondition o appli(antGs 2ond* The party applying for

the order must thereafter give a bond e/ecuted to the adverse

party in the amount */ed by the court in its order granting the

issuance of the writ, conditioned that the latter 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 *nally adjudged that the applicant was not

entitled there to.

Amo,nt o appli(ants 2ond

-t may be(

1. equal to the applicantIs demand or2. the value of the property to be attached.

 444 i' the amo%'t 5e b the co%rt i' its orer

gra'ti'g the iss%a'ce o the 0rit 444

 The present rule leaves the amount to be */ed by the court in

its order without any limitation.

What is the ,se o the 2ond?

-t shall answer for the payment(

1. of all costs which may be adjudged to the adverse party

2. of all the damages which the adverse party may sustain by

reason of the attachment, if the court shall *nally adjudge that

the applicant was not entitled thereto

ARELLANO vs* LO0O

A*M* No* R%07987)551 Novem2er ):4 )99:

Can the judge issue a rit based on a plain underta*ing

1promissory note2 by the applicant?

3eld( ;o. here a statute authori6ing attachment requires, as a

condition to the issuance of the writ, that a bond shall be given

by plainti' to indemnify defendant for any loss or injury

resulting from the attachment in case it proves to be wrongful, a

failure to give such bond is fatal, and an attachment issued

without the necessary bond is invalid.

Responsi2ilit. o the s,ret.

&ALDERON vs* IA&

+*R* No* #:;9; Novem2er ))4 )91#

 The responsibility of the surety arises Gif the court shall *nally

adjudge that the plainti' was not entitled thereto.G The liability

attaches if the plainti' is not entitled to the attachment because

the requirements entitling him to the writ are wanting, or if the

plainti' has no right to the attachment because the facts stated

in his adavit, or some of them, are untrue. -t is, therefore,

evident that upon the dismissal of an attachment wrongfully

issued, the surety is liable for damages as a direct result of said

attachment.

hether the attachment was discharged by either of the two 425

ways indicated in the law, i.e., by *ling a counterbond or by

showing that the order of attachment was improperly or

irregularly issued, the liability of the surety on the attachment

bond subsists because the *nal reconing is when Gthe +ourt

shall *nally adjudge that the attaching creditor was not entitledG

to the issuance of the attachment writ in the *rst place.

Se(* "* Manner o atta(hin< propert.* The sheri' enforcing

the writ shall without delay and with all reasonable diligence

attach, to await judgment and e/ecution in the action, only so

much of the property in the Philippines of the party against

whom the writ is

issued, not e/empt from e/ecution, as may be sucient to

satisfy the applicants demand, unless the former maes adeposit with the court from which the writ is issued, or gives a

counterbond e/ecuted to the applicant, in an amount equal to

the bond */ed by the court in the order of attachment or to the

value of the property to be attached, e/clusive of costs. ;o 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 applicants adavit and bond, and the order

and writ of attachment, on the defendant within the Philippines.

 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

e'orts, or the defendant is a resident of the Philippinestemporarily absent therefrom, or the defendant is a nonresident

of the Philippines, or the action is one in rem or quasi in rem.

'o- does the deendant prevent lev. on atta(hment?

 The adverse party should(

1. mae a deposit with the court from which the writ is issued, o

2. give a counterbond e/ecuted to the applicant

in an amount equal to the bond */ed by the court in the order of

attachment or to the value of the property to be attached,

e/clusive of costs.

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P,rpose o deposit or (o,nter2ond

 To secure the payment of any judgment in favour of the

attaching party.

J( hen do you pay the counterbond:

A( Prior to the return by the sheri', otherwise he losses

authority.

PRIOR OR &ON%EMPORANEO!S SERVI&E

+eneral R,le6 ;o 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 applicants adavit and bond, and the order

and writ of attachment, on the defendant within the Philippines.

EB(eptions6

 The requirement of prior or contemporaneous service of

summons shall not apply

1. where the summons could not be served personally or by

substituted service despite diligent e'orts,

2. the defendant is a resident of the Philippines temporarily

absent therefrom,

. the defendant is a nonresident of the Philippines,

". the action is one in rem or quasi in rem.

$. where a previous attempt to serve the summons and the writ

of attachment failed due to factors beyond the control of either

the plainti' or the process server 4>nate case5.

ONA%E vs* A/RO+AR

+*R* No* )5#858 e2r,ar. 3)4 )99:

An e/ception to the established rule on the enforcement of the

writ of attachment can be made where a previous attempt to

serve the summons and the writ of attachment failed due to

factors beyond the control of either the plainti' or the process

server, provided that such service is e'ected within a

reasonable period thereafter.

Reasons (an 2e <iven or the eB(eption6

1. There is a possibility that a defendant, having been alerted of

plainti's action by the attempted service of summons and the

writ of attachment, would put his properties beyond the reach of 

the plainti' while the latter is trying to serve the summons and

the writ anew. Ly the time the plainti' may have caused the

service of summons and the writ, there might not be any

property of the defendant left to attach.

2. The court eventually acquired jurisdiction over the petitioners

si/ days later. To nullify the notices of garnishment issued prior

thereto would again open the possibility that petitioners would

transfer the garnished monies while 7un Hife applied for new

notices of garnishment.

. The ease by which a writ of attachment can be obtained is

counterbalanced by the ease by which the same can be

discharged( the defendant can either mae a cash deposit or

post a counterbond equivalent to the value of the property

attached. The petitioners herein tried to have the writ of

attachment discharged by posting a counterbond, the same

was denied by respondent Rudge on the ground that the amountof the counterbond was less than that of 7un Hifes bond.

SIEVER% vs* &A

+*R* No* 1:58: De(em2er 334 )911

3eld( e should perhaps mae e/plicit that we are here

addressing the situation of nown, resident defendants only.

here the defendant is a nonresident, attachment of property

may sought in order to bring a res within the jurisdiction of the

court, in substitution, as it were, of the body of the defendant

47ection 1 NfO, !ule $8, !evised !ules of +ourt5. Rurisdiction over

the res and the person of the defendant is, in such case,

acquired by service of summons by publication 47ections 1%,18

and 1Q, !ule 1", -d.5 though that jurisdiction may be made

e'ective only in respect of the res attached.

'/ A&'R$ vs* &A

+*R* No* )5;919 Ma. )54 )99:

 The enforcement of the preliminary attachment on 28 Carch

1<<=, although simultaneous with the service of the summons

and a copy of the complaint, did not bind Wachry because the

service of the summons was not validly made. hen a foreign

corporation has designated a person to receive service of

summons pursuant to the +orporation +ode, that designation is

e/clusive and service of summons on any other person is

inecacious. The valid service of summons and a copy of the

amended complaint was only made upon it on 2" April 1<<=,

and it was only then that the trial court acquired jurisdiction

over Wachrys person. Accordingly, the levy on attachment made

by the sheri' on 28 April 1<<= was invalid. 3owever, the writ of

preliminary attachment may be validly served anew.

ONA%E vs* A/RO+AR

+*R* No* )5#858 e2r,ar. 384 )99"

Can irregularities in the enforcement of the rit of attachment

be cured by subsequent service of summons?

3eld( The attachment of petitioners properties prior to the

acquisition of jurisdiction by the respondent court is void and

that the subsequent service of summons on petitioners did not

cure the invalidity of such attachment. Therefore, it is required

that when proper ocer commences implementation of the writ

of attachment service of summons should be simultaneously

made.

3evie4 What are properties eBempted rom eBe(,tion?

Se(* )8* Propert. eBempt rom eBe(,tion* B/cept as

otherwise e/pressly provided by law, the following property, and

no other, shall be e/empt from e/ecution(

a. The judgment obligors family home as provided by law, or

the homestead in which he resides, and land necessarily used in

connection therewith9

b. >rdinary tools and implements personally used by him in hs

trade, employment, or livelihood9

c. Three horses, or three cows, or three carabaos, or otherbeasts of burden such as the judgment obligor may select

necessarily used by him in his ordinary occupation9

d. 3is necessary clothing and articles for ordinary personal use,

e/cluding jewelry9

e. 3ousehold furniture and utensils necessary for houseeeping,

and used for that purpose by the judgment obligor and his

family, such as the judgment obligor may select, of a value not

e/ceeding one hundred thousand pesos9

f. Provisions for individual or family use sucient for four

months9

g. The professional libraries and equipment of judges, lawyers,

physicians, pharmacists, dentists, engineers, surveyors,

clergymen, teachers, and other professionals, not e/ceeding

three hundred thousand pesos in value9

h. >ne *shing boat and accessories not e/ceeding the total

value of one hundred thousand pesos owned by a *sherman and

by the lawful use of which he earns his livelihood9

i. 7o much of the salaries, wages, or earnings of the judgment

obligor of his personal services within the four months preceding

the levy as are necessary for the support of his family9

 j. Hettered gravestones9

. Conies bene*ts, privileges, or annuities accruing or in any

manner growing out of any life insurance9

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l. The right to receive legal support, or money or property

obtained as such support, or any pension or gratuity from the

Fovernment9

m. Properties specially e/empt by law.

Lut no article or species of property mentioned in his section

shall be e/empt from e/ecution issued upon a judgment

recovered for its price or upon a judgment of foreclosure of a

mortgage thereon.

+O%A!&O vs* RE+IS%R$ O DEEDS

+*R* No* L789"9; Mar(h 384 )98:

ay the heir%s share in the estate of the deceased be attached?3eld( @es. Although the value of the participation of !afael 0ilar

in the estate of lorentino 0ilar was indeterminable before the

*nal liquidation of the estate, nevertheless, the right of

participation in the estate and the lands thereof may be

attached and sold.

 The real test was laid down by this court in the case of 3eyes vs.

5rey 421 Phil., 8, 8%5, namely( &oes the judgment debtor hold

such a bene*cial interest in the property that he can sell or

otherwise dispose of it for value: ;othing appears in this record

to indicate that !afael 0ilar being sui juris could not dispose of

his interest or share as heir in the estate of lorentina 0ilar.

3aving this right, he could by a conveyance defeat  pro tanto the

provisions of section "$= of the +ode of +ivil Procedure and thus

deprive the judgment creditor of the bene*t of a lawful

e/ecution.

Se(* ;* SherifGs ret,rn* After enforcing the writ, the sheri'

must liewise without delay mae a return thereon to the court

from which the writ issued, with a full statement of his

proceedings under the writ and a complete inventory of the

property attached, together with any counterbond given by the

party against whom attachment is issued, and serve copies

thereof on the applicant.

&ontents o sherifs ret,rn

1. a full statement of his proceedings under the writ

2. a complete inventory of the property attached,

. any counterbond given by the party against whom

attachment is issued

According to !ule <, 7ection %, the lifetime of a writ of

e/ecution is now set at *ve years from the date of entry of

 judgment.

RO!E vs* &A

+*R* No* L7:3"9: O(to2er )14 )9#9

&rit as implemented more than si$ty days after its issuance so

that they need not have complied ith Section 67, 3ule 89. +s

the levy illegal?

3eld( ;o. The !ules do not provide any lifetime for a rit of

Attachment unlie a rit of B/ecution. Lut even granting that a

rit of Attachment is valid for only si/ty days, yet, since there

was constructive levy within that period the fact that actual

sei6ure was e'ected only thereafter cannot a'ect the validity of

that levy.

Se(* #* Atta(hment o real and personal propert.Fre(ordin< thereo* !eal and personal property shall be

attached by the sheri' e/ecuting the writ in the following

manner(

4a5 !eal property, or growing crops thereon, or any interest

therein, standing upon the record of the registry of deed of the

province in the name of the party against whom attachment is

issued, or not appearing at all upon such records, or belonging

to the party against whom attachment is issued and held by any

other person, or standing on the records of the registry of deeds

in the name of any other person, by *ling with the registry of

deeds a copy of the order, together with a description of the

property attached, and a notice that it is attached, or that such

real property and any interest therein held by or standing in the

name of such other person are attached, and by leaving a copy

of such order, description, and notice with the occupant of the

property, if any, or with such other person or his agent if found

within the province. here the property has been brought under

the operation of

either the Hand !egistration Act or the Property !egistration

&ecree, the notice shall contain a reference to the number of

the certi*cate of title, the volume and page in the registration

boo where the certi*cate is registered, and the registered

owner or owners thereof.

 The registrar of deed must inde/ attachments *led under this

section in the names of the applicant, the adverse party, or the

person by whom the property is held or in whose name it stands

in the records. -f the attachment is not claimed on the entire

area of the land covered by the certi*cate of title, a description

suciently accurate for the identi*cation of the land or interest

to be a'ected shall be included in the registration of such

attachment9

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