Preliminary Attachment Case Doctrines

ALFREDO C. LIM, JR., PETITIONER,

vs.
SPOUSES TITO S. LAZARO AND CARMEN T. LAZARO, RESPONDENTS.

By its nature, preliminary attachment, under Rule 57 of the Rules of Court (Rule 57), is an ancillary
remedy applied for not for its own sake but to enable the attaching party to realize upon the relief
sought and expected to be granted in the main or principal action; it is a measure auxiliary or
incidental to the main action. As such, it is available during its pendency which may be resorted to by
a litigant to preserve and protect certain rights and interests during the interim, awaiting the ultimate
effects of a final judgment in the case. In addition, attachment is also availed of in order 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.

In this relation, while the provisions of Rule 57 are silent on the length of time within which an
attachment lien shall continue to subsist after the rendition of a final judgment, jurisprudence dictates
that the said lien continues until the debt is paid, or the sale is had under execution issued on the
judgment or until the judgment is satisfied, or the attachment discharged or vacated in the same
manner provided by law.

LETICIA P. LIGON, Petitioner,

vs.
THE REGIONAL TRIAL COURT,

Thus, a prior registration40 of an attachment lien creates a preference, such that when an
attachment has been duly levied upon a property, a purchaser thereof subsequent to the attachment
takes the property subject to the said attachment.42 As provided under PD 1529, said registration
operates as a form of constructive notice to all.

Notwithstanding the subsequent cancellation of TCT No. 9273 due to the Makati City RTC’s
December 9, 2004 Decision rescinding the transfer of the subject property from Sps. Baladjay to
Polished Arrow upon a finding that the same was made in fraud of creditors, Ligon’s attachment lien
over the subject property continued to subsist since the attachment she had earlier secured binds
the property itself, and, hence, continues until the judgment debt of Sps. Baladjay to Ligon as
adjudged in the Quezon City Case is satisfied, or the attachment discharged or vacated in some
manner provided by law.

Torres vs Satsatin

In accepting a surety bond, it is necessary that all the requisites for its approval are met; otherwise,
the bond should be rejected.

Moreover, in provisional remedies, particularly that of preliminary attachment, the distinction

between the issuance and the implementation of the writ of attachment is of utmost importance to
the validity of the writ. The distinction is indispensably necessary to determine when jurisdiction
over the person of the defendant should be acquired in order to validly implement the writ of
attachment upon his person.

In Cuartero v. Court of Appeals, this Court held that the grant of the provisional remedy of
attachment 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 be first obtained. However, once the implementation of the writ commences, 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.

Moreover, again assuming arguendo that the writ of attachment was validly issued, although the trial
court later acquired jurisdiction over the respondents by service of the summons upon them, such
belated service of summons on respondents cannot be deemed to have cured the fatal
defect in the enforcement of the writ. The trial court cannot enforce such a coercive
process on respondents without first obtaining jurisdiction over their person. The
preliminary writ of attachment must be served after or simultaneous with the service
of summons on the defendant whether by personal service, substituted service or by
publication as warranted by the circumstances of the case. The subsequent service of
summons does not confer a retroactive acquisition of jurisdiction

Mangila vs CA
In conclusion, we hold that the alias summons belatedly served on petitioner cannot be deemed to
have cured the fatal defect in the enforcement of the writ. The trial court cannot enforce such a
coercive process on petitioner without first obtaining jurisdiction over her person.

The preliminary writ of attachment must be served after or simultaneous with the service of
summons on the defendant whether by personal service, substituted service or by publication as
warranted by the circumstances of the case. The subsequent service of summons does not confer a
retroactive acquisition of jurisdiction over her person because the law does not allow for retroactivity
of a belated service.

Chuidian vs Sandiganbayan
When the preliminary attachment is issued upon a ground which is at the same time the applicant’s
cause of action, the defendant is not allowed to file a motion to dissolve the attachment under Section
13 of Rule 57 by offering to show the falsity of the factual averments in the plaintiff’s application and
affidavits on which the writ was based – and consequently that the writ based thereon had been
improperly or irregularly issued – the reason being that the hearing on such a motion for dissolution of
the writ would be tantamount to a trial of the merits of the action. In other words, the merits of the
action would be ventilated at a mere hearing of a motion, instead of at the regular trial.
The merits of the action in which a writ of preliminary attachment has been issued are not triable on a
motion for dissolution of the attachment; otherwise an applicant for the lifting of the writ could force a
trial of the merits of the case on a mere motion.

There are only two ways of quashing a writ of attachment: (a) by filing a counterbond immediately; or
(b) by moving to quash on the ground of improper and irregular issuance. These grounds for the
dissolution of an attachment are fixed in Rule 57 of the Rules of Court and the power of the Court to
dissolve an attachment is circumscribed by the grounds specified therein. Petitioner’s motion to lift
attachment failed to demonstrate any infirmity or defect in the issuance of the writ of attachment;
neither did he file a counterbond.

Luzon Dev bank vs Krishnan

it is evidently clear that once the writ of attachment has been issued, the only remedy of the petitioners in
lifting the same is through a cash deposit or the filing of the counter-bond. Thus, the Court holds that
petitioner's argument that it has the option to deposit real property instead of depositing cash or filing a
counter-bond to discharge the attachment or stay the implementation thereof is unmeritorious.

Northern Luzon Island vs Garcia

In this case, petitioner had duly perfected its appeal of the RTC’s September 21, 2011 Decision resolving
the Main Case through the timely filing of its Notice of Appeal dated October 27, 2011, together with the
payment of the appropriate docket fees. The RTC, in an Order39 dated January 25, 2012, had actually
confirmed this fact, and thereby ordered the elevation of the entire records to the CA. Meanwhile, records do
not show that respondents filed any appeal, resulting in the lapse of its own period to appeal therefrom.
Thus, based on Section 9, Rule 41, it cannot be seriously doubted that the RTC had already lost jurisdiction
over the Main Case.

With the RTC’s loss of jurisdiction over the Main Case necessarily comes its loss of jurisdiction over all
matters merely ancillary thereto. Thus, the propriety of conducting a trial by commissioners in order to
determine the excessiveness of the subject preliminary attachment, being a mere ancillary matter to the
Main Case, is now mooted by its supervening appeal in CA-G.R. CV No. 98237.

Attachment is defined as 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.

It is an auxiliary remedy and cannot have an independent existence apart from the main suit or claim
instituted by the plaintiff against the defendant. Being merely ancillary to a principal proceeding, the
attachment must fail if the suit itself cannot be maintained as the purpose of the writ can no
longer be justified.

Excellent Quality Apparel vs Visayan Insurance

Thus, the current provision of Section 20, Rule 57 of the 1997 Rules of Civil Procedure covers application for
damages against improper attachment, preliminary injunction, receivership, and replevin.43Consequently,
jurisprudence concerning application for damages against preliminary injunction, receivership and replevin
bonds can be equally applied in the present case.

In a catena of cases,44 the Court has cited the requisites under Section 20, Rule 57 in order to claim
damages against the bond, as follows:
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1. The application for damages must be filed in the same case where the bond was issued; chanRob lesvi rtual Lawl ibra ry

2. Such application for damages must be filed before the entry of judgment; and

3. After hearing with notice to the surety.

The first and second requisites, as stated above, relate to the application for damages against the bond. An
application for damages must be filed in the same case where the bond was issued, either (a) before the
trial or (b) before the appeal is perfected or (c) before the judgment becomes executory.45 The usual
procedure is to file an application for damages with due notice to the other party and his sureties. The other
method would be to incorporate the application in the answer with compulsory counterclaim.46 redarclaw

The purpose of requiring the application for damages to be filed in the same proceeding is to avoid the
multiplicity of suit and forum shopping. It is also required to file the application against the bond before the
finality of the decision to prevent the alteration of the immutable judgment.

The next requisite that must be satisfied by petitioner to hold Visayan Surety liable would be that the
judgment against the wrongful attachment was promulgated after the hearing with notice to the surety.
Certainly, the surety must be given prior notice and an opportunity to be heard with respect to the
application for damages before the finality of the judgment. The Court rules that petitioner did not satisfy
this crucial element.

Section 20, Rule 57 specifically requires that the application for damages against the wrongful attachment,
whether filed before the trial court or appellate court, must be with due notice to the attaching party and his
surety or sureties. Such damages may be awarded only after proper hearing and shall be included in the
judgment on the main case.

Due notice to the adverse party and its surety setting forth the facts supporting the applicant's right to
damages and the amount thereof under the bond is indispensable. The surety should be given an
opportunity to be heard as to the reality or reasonableness of the damages resulting from the wrongful
issuance of the writ. In the absence of due notice to the surety, therefore, no judgment for damages may be
entered and executed against it.

Watercraft Venture vs Wolfe

1) For the issuance of an ex-parte issuance of the preliminary attachment to be valid, an affidavit of merit
and an applicant's bond must be filed with the court14 in which the action is pending. Such bond executed to
the adverse party in the amount fixed by the court is subject to the conditions that the applicant will pay:
(1) all costs which may be adjudged to the adverse party; and (2) all damages which such party may
sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled
thereto.15 As to the requisite affidavit of merit, Section 3,16 Rule 57 of the Rules of Court states that an order
of attachment shall be granted only when it appears in the affidavit of the applicant, or of some other
person who personally knows the facts that a sufficient cause of action exist; that the case is one of those
mentioned in Section 1 hereof; that there is no other sufficient 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 mere filing of an affidavit reciting the facts required by Section 3, Rule 57, however, is not enough to
compel the judge to grant the writ of preliminary attachment. Whether or not the affidavit sufficiently
established facts therein stated is a question to be determined by the court in the exercise of its
discretion.18 "The sufficiency or insufficiency of an affidavit depends upon the amount of credit given it by
the judge, and its acceptance or rejection, upon his sound discretion.

2) Meanwhile, Watercraft's reliance on Chuidian v. Sandiganbayan34 is displaced. It is well settled that:

x x x when the preliminary attachment is issued upon a ground which is at the same time the
applicant's cause of action; e.g., "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," or "an action against a party who has been guilty of fraud in contracting the
debt or incurring the obligation upon which the action is brought," the defendant is not allowed to file a
motion to dissolve the attachment under Section 13 of Rule 57 by offering to show the falsity of
the factual averments in the plaintiffs application and affidavits on which the writ was based -
and consequently that the writ based thereon had been improperly or irregularly issued - the
reason being that the hearing on such a motion for dissolution of the writ would be tantamount
to a trial of the merits of the action. In other words, the merits of the action would be ventilated at a
mere hearing of a motion, instead of at the regular trial.35

Be that as it may, the foregoing rule is not applicable in this case because when Wolfe filed a motion to
dissolve the writ of preliminary attachment, he did not offer to show the falsity of the factual averments in
Watercraft's application and affidavit on which the writ was based. Instead, he sought the discharge of the
writ on the ground that Watercraft failed to particularly allege any circumstance amounting to fraud.

Phil-Airconditioning vs RCJ Lines

1) In sum, where the law provides the period within which to assert a claim or file an action in court, the
assertion of the claim or the filing of the action in court at any time within the prescriptive period
is generally deemed reasonable, and thus, does not call for the application of laches. As we held in one
case, unless reasons of inequitable proportions are adduced, any imputed delay within the
prescriptive period is not delay in law that would bar relief.

2) As discussed above, it is patent that under the Rules, the attachment bond answers for all damages
incurred by the party against whom the attachment was issued. Thus, Phil-Air cannot be held directly
liable for the costs adjudged to and the damages sustained by RCJ Lines because of the attachment.
Section 4 of Rule 57 positively lays down the rule that the attachment bond 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 thereto.”

The RTC, instead of declaring Phil-Air liable for the alleged unrealized profits and counter-bond premium,
should have ordered the execution of the judgment award on the attachment bond. To impose direct
liability to Phil-Air would defeat the purpose of the attachment bond, which was not dissolved despite the
lifting of the writ of preliminary attachment.

The order to refund the counter-bond premium is likewise erroneous. The premium payment may be
deemed a cost incurred by RCJ Lines to lift the attachment. Such cost may be charged against the
attachment bond.