I.

Procedure in Preliminary Attachment

The chief purpose of a writ of preliminary attachment, as cited in Salgado vs CA, 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.” Also,
attachment as a provisional remedy is a purely statutory one. Section 1 of Rule 57 cites the
grounds for the issuance of the writ of preliminary attachment. Thus, the party seeking an
attachment must show that a sufficient cause of action exists and that the amount due him is
as much as the sum for which the order of attachment is sought. Since the writ is to be
strictly construed against the defendant, it may be quashed by certiorari if the court acts in
excess of its jurisdiction.

Once there is a valid ground that would entitle the plaintiff to bring an action against the
defendant, such order of attachment may be issued either ex parte or upon motion with
notice and hearing by the court in which the action is pending. The grant of this provisional
remedy involves three stages: first,the court issues the order granting the application; second,
the writ of attachment issued pursuant to the order granting the writ; and third, the writ is
implemented. For the first two stages, it is not necessary that jurisdiction over the person of
the defendant be first obtained. This is why the issuance of the said writ ex parte is allowed.
However, the writ cannot bind and affect the defendant until jurisdiction over his person is
eventually obtained.

Aside from the application for the writ of preliminary attachment, it is also required that
there be an affidavit and a bond. The affidavit is the foundation of the writ. Thus, it should
establish that a sufficient cause of action exists, the case is one of those grounds mentioned in
Sec. 1 of Rule 57, there is no sufficient security for the claim sought to be enforced, and that
the amount due to the applicant is as much as the sum for which the order is granted above
all legal counter claims. Failure to state these in the affidavit would render the application
fatally defective and the judge issuing it may be deemed to have acted in excess of his
jurisdiction. Compliance with both of these requisites would now the issuance of the writ of
preliminary attachment.

It is important to note that the writ of attachment must be served simultaneously with
the service of summons before such writ could be enforced. According to Justice Feria,
Subsequent service of summons after enforcement of the levy on attachment does not cure
the irregularities that attended such enforcement (Onate v. Abrogar). This rule however is not
applicable when summons cannot be served personally or by substituted service with diligent
efforts or that the defendant is a resident of the Philippines temporarily absent therefrom. In
other words, this rule only applies to actions in personam. With regards to the counterbond,
such must be made prior to the return. Otherwise, the sheriff loses authority. The sheriff shall
then make a return to the court with a full statement of his proceedings and a complete
inventory of the property attached, together with any counter-bond received.

Real properties, personal properties, stocks, shares or interests are the primary objects of
attachment. However, when a sheriff is able to determine that a person is in possession of or
in control of credit of the defendant, the latter may likewise be the subject of attachment. This
subsists until the debts of the defendant are paid. This process is called garnishment. He is
judicially compelled to pay the amount of the judgment represented by the funds in his
possession belonging to the debtor. It is to be noted also that the lien obtained by
attachment stands upon as high equitable grounds as a mortgage lien. For instance, when
you have a court order issuing a writ of possession and another court order issuing a writ of
attachment, the former is null and void as it cannot supplant the jurisdiction of a co-equal
court.

Special adjective tools or devices were provided by the Revolutionary Government for
the recovery of “ill-gottten wealth.” These are in the form of sequestration and freeze orders
as regards “unearthed instance of ‘ill gotten wealth’” and provisional takeover as regards
“business enterprises and properties taken over by the government of the Marcos
Administration.

After the writ of attachment has been enforced, the party whose property has been
attached, or the person appearing on his behalf, may move for the discharge of the
attachment wholly or in part on the security given. The deposit or counterbond stands in
place of the property so released regardless of how judgment was obtained. Only the
defendant or the party whose property is attached may move for the lifting of the writ.
However, the discharge is not automatic. There must be a hearing and a court order. Upon
the discharge, such property attached or proceeds of the sale will be delivered to the party
making the deposit or the counter-bond.

In the case of Manila Herald Publishing Co., Inc vs. Ramos, it was held that “while it is true
that property in custody of the law may not be interfered with…this rule is confined to cases
where the property belongs to the defendant or one in which the defendant has proprietary
interests. But when the sheriff, acting beyond the bounds of his office seizes a stranger’s
property, the rules do not apply…” In this case, the principle of non-interference applies.
However, the sheriff is not liable for damages to the claimant when the attaching party files a
bond. This bond serves to indemnify the third-party claimant.

If after realizing upon all the property attached, there is still an excess or a balance in the
proceeds, such shall be delivered to the judgment debtor. On the other hand, when it is
money instead of counter-bond that is given, it shall be applied to the satisfaction of any
judgment rendered in favor of the attaching party, and after satisfying the judgment, the
balance shall be refunded to the depositor or his assignee. If however, judgment is rendered
in favor of the party against whom attachment was issued, all proceeds of sales and money
collected under order of attachment and all attached property remaining must be delivered.

There are also instances when the defendant can claim damages on account of improper,
irregular, or excessive attachment (Zaragosa vs Fidelino). As a general rule, the claim for
damages against the bond must be in the same action which issued the writ or else, it is
barred. It also requires that the damages must be awarded before judgment becomes final.
This rule, however, also warrants of exceptions. One instance is when the principal case was
dismissed for lack of jurisdiction and no claim for damages could have been presented in the
said case.
Reference: Herrera, Oscar M. (1990). Remedial Law, Volume 3.
Mindanao Savings & Loan Association vs. Court of Appeals
G. R. 84481

FACTS:
1. REGIONAL TRIAL COURT
a. The private respondents in this case, the Mercados, filed in the RTC of Davao a
Complaint for “Rescission of Contract and Damages” with a prayer for preliminary
attachment against defendants D.S. Homes, Inc. And its directors
b. RTC Judge Dinopol issued an order granting the application for the writ of
preliminary attachment ex parte as well as an ex parte amended order of attachment
to reflect the second amended complaint filed by the Mercados to implead as
additional defendants---Davao Savings & Loan Association, Inc and its president,
Francisco Villamor.
c. Davao Savings & Loan Association (later renamed MSLA) and Villamor filed their
separate motions to quash the writ of attachment but it was subsequently denied.
d. Due to the denial, they offered a counterbond amounting to P1,752,861.41
e. Counterbond was accepted by the RTC, lifting the writ of preliminary attachment.

2. COURT OF APPEALS
a. MSLA and Villamor filed a petition for certiorari to annul the order of of
attachment and the denial of their motion to quash the same, alleging that the
RTC acted in excess of its jurisdiction.
b. The CA dismissed the petition for certiorari and remanded the case to the RTC for
expeditious proceedings holding that:
i. Objections against the writ may no longer be invoked once a counterbond is
filed for its lifting or dissolution.
ii. The grounds invoked for the issuance of the writ from the core of the
complaint and trial on the merits was necessary.
iii. The merits of a main action are not triable in a motion to discharge an
attachment otherwise an applicant for dissolution could force a trial on the
merits of the case on his motion.
3. SUPREME COURT
a. Dissatisfied, petitioners appealed to the SC.

ISSUE: Whether or not the ruling of the CA was correct.

RULING:
YES, the CA was correct. The CA did not err in holding that objections to the impropriety or
irregularity of the writ of attachment “may no longer be invoked once a counterbond is filed,”
when the ground for issuance of the writ forms the core of the complaint.

The only requisites for the issuance of a writ of preliminary attachment under Section 3, Rule 5
of the Rules of Court are the affidavit and the bond of the applicant. No notice to the
adverse party or hearing of the application of the writ of attachment is required.

Moreover, as the CA correctly observed, when the ground for the issuance of the writ is also
the core of the complaint, the question of whether the plaintiff was entitled to the writ can
only be determined after a full-blown trial on the merits of the case.
Synthesis:
This case illustrates the exception to the general rule that the attachment debtor is not
precluded from moving for the discharge of the attachment on the ground of improper
issuance.

As per Rule 57, there are two ways to discharge an attachment:

Thus, it could be deemed that that the attachment debtor is not precluded from filing a
motion to dissolve attachment through Section 13 of Rule 57 even though he/she has already
availed of dissolving the attachment through the filing of a counterbond under Section 12 of
Rule 57.