• Definition: Preliminary attachment is a provisional remedy where the property of an adverse

party is taken into legal custody as security for the satisfaction of a judgment that may be
recovered by the plaintiff or any proper party. It can occur at the commencement of an action or
at any time thereafter.

• Statutory Basis: It is purely a statutory remedy and cannot exist without a statute granting it.
Its legal basis can be found in both the Rules of Court (Rule 57) and the Civil Code of the
Philippines (Article 1177), which allows a creditor to pursue the property of the debtor.

• Nature: It is not a separate action but an incidental remedy that occurs during the pendency of
a principal action. It is meant to prevent the adverse party’s property from being dissipated or
disposed of during litigation.

• Quasi in rem: Attachment is considered a quasi in rem proceeding, meaning it involves the
defendant’s property and not necessarily the person. If the defendant is a non-resident and does
not appear, the case proceeds in rem, making the attached property answerable to any judgment
rendered.

• Effect on Non-appearance: If the defendant does not appear in court, the proceeding is quasi
in rem, and the attached property can be made liable for the judgment. However, if the defendant
appears, it becomes a suit in personam, but the attached property remains liable.

• • General Rule:

• Discussion: A writ of preliminary attachment is not available in every case. It can only be
availed of in certain situations specified in Rule 57 of the Rules of Court. This means that
attachment is a special remedy and can only be granted when certain legal requirements
are met. The primary purpose is to secure the satisfaction of a judgment by preventing the
defendant from disposing of property during the litigation.

• Insolvency is Not a Ground for Attachment:

• Discussion: The mere fact that a defendant is insolvent or unable to pay debts does not
automatically justify the issuance of a writ of preliminary attachment. Insolvency must be
accompanied by fraudulent acts such as an intention to defraud creditors for attachment
to be valid. This emphasizes that the inability to pay is not enough; there must be an
element of bad faith or fraud.

• Recovery of a Specified Amount of Money or Damages:

• Discussion: Preliminary attachment may be issued when the action involves the recovery
of a specified sum of money or damages that arises from obligations like contracts, quasi-
contracts, or torts (delict). It is important to note that actions for moral or exemplary
 damages are excluded from this remedy, reflecting the nature of these damages, which
are often subjective and cannot be easily quantified or secured in advance.

• Action for Property Embezzled or Misapplied:

• Discussion: If the defendant has embezzled or fraudulently converted property in a

fiduciary capacity (e.g., a public officer, attorney, or corporate officer), a writ of
preliminary attachment may be issued. Here, the emphasis is on the nature of the
relationship of trust and the breach thereof. The defendant’s actions are seen as
particularly egregious because they misuse their position of trust for personal gain,
justifying attachment without needing to show that they are concealing their assets.

• Recovery of Fraudulently Taken Property:

• Discussion: Preliminary attachment is also appropriate when the defendant unjustly or

fraudulently takes or conceals property, preventing the rightful owner from recovering it.
The core requirement here is proof of fraud or wrongful acts in taking or hiding the
property. The purpose of attachment in this case is to prevent the defendant from further
concealing or disposing of the property before the court can resolve the case.

• Fiduciary Duty and Misappropriation:

• Discussion: Preliminary attachment may also be issued against a public or corporate

officer who misappropriates funds. Misappropriation occurs when a person in a fiduciary
role (a person in a position of trust) abuses that trust for personal gain. Since fiduciary
duties are founded on trust and confidence, their violation is viewed more seriously, and
attachment is used to ensure that assets are secured until the case is resolved.

D. Fraud in Contracting or Performing an Obligation

1. Grounds for Preliminary Attachment:

o Preliminary attachment may be obtained when the action is based on fraud in
contracting the debt or obligation, or in the performance of the obligation itself
(Sec. 1[d], Rule 57, Rules of Court).
2. Basis for Attachment:
o The fraudulent act must relate either to: a. Contracting the debt (incurring the
obligation). b. Performing the obligation.
o The fraud must be the reason the other party agreed to the contract or obligation.
3. Types of Fraud:
o Dolo Causante (Causal Fraud):
▪ Fraud used to induce another to enter into a contract (Art. 1338, Civil
Code).
o Dolo Incidente (Incidental Fraud):
 ▪ Fraud in the performance of the obligation after the contract has been
made (Art. 1344, Civil Code). This type of fraud obliges only the payment
of damages but can still justify attachment.
4. Pre-Amendment Rule:
o Under the former rule (Rule 57, 1964), only fraud in contracting the obligation
(dolo causante) was grounds for attachment. Now, fraud in the performance of the
obligation (dolo incidente) is also a valid ground.
5. Examples of Fraud in Obligation Performance:
o Issuing a counterfeit or bouncing check as payment is considered fraud and can
justify preliminary attachment.
o The fraud must involve intentional deceit in performing or contracting the
obligation, not mere inability to pay.

E. Removal or Disposal of Property with Intent to Defraud

1. Grounds for Preliminary Attachment:

o Preliminary attachment can be issued when a defendant has removed, disposed of,
or is about to dispose of property with intent to defraud creditors (Sec. 1[e], Rule
57, Rules of Court).
2. Requirements for Issuance:
o Two elements must be established: a. The property has been removed or disposed
of, or the defendant is about to do so. b. The act is done with the intent to defraud
creditors.
o Mere removal of property is insufficient; intent to defraud must be proven.
3. Fraud Must Be Proven:
o Fraud is not presumed; it must be specifically proven. Non-payment of a debt or
inability to comply with an obligation is not enough to infer fraudulent intent.
o The application for attachment must provide clear, particular details about the
fraudulent act (e.g., time, place, and actions).

Here are the summarized study notes on Preliminary Attachment in relation to actions against
non-residents and summons by publication:

Action Against Non-Residents or Defendants Served by Publication

1. Preliminary Attachment for Non-Residents:

o Preliminary attachment may be obtained against a party who does not reside and
is not found in the Philippines, where summons may be served by publication
(Sec. 1[f], Rule 57, Rules of Court).
2. Application Beyond Non-Residents:
o The rule applies not only to non-residents but also to residents whose whereabouts
are unknown or who are temporarily out of the country. This means that: a.
 Resident defendants with unknown whereabouts can have their properties
attached. b. Resident defendants temporarily out of the country may also face
preliminary attachment if summons is served by publication.
3. Unknown Whereabouts:
o Summons may be served by publication under Sec. 14, Rule 14, when the identity
or location of the defendant is unknown. The action in this case may be in rem
(against the property) or quasi in rem (against the defendant’s interest in the
property). The defendant’s absence justifies attachment.
4. Residents Temporarily Out of the Country:
o For residents who are temporarily out of the Philippines, attachment can be
allowed, especially if the defendant can be summoned by publication (Sec. 16,
Rule 14). The court can acquire jurisdiction without the need to physically attach
the defendant's property.
5. Converting an Action:
o In an in personam action, where the defendant is a non-resident or cannot be
found, the plaintiff can convert the action into a proceeding in rem or quasi in
rem to attach the defendant’s property. This ensures that jurisdiction over the
property is established to proceed with the case.
6. Summons by Publication (Sec. 16, Rule 14):
o This provision allows for publication of summons in cases where residents are
temporarily out of the Philippines. This ensures the plaintiff’s ability to proceed
with an action despite the defendant's absence from the jurisdiction.
7. Substituted Service:
o The court may allow substituted service in lieu of publication if the defendant is
temporarily absent from the Philippines. This means that copies of the summons
may be left at the defendant's last known address or place of business. This
method suffices to acquire jurisdiction over the defendant without needing to
attach the property.
8. Case Example: Montalban v. Maximo:
o The court ruled that substituted service is a normal mode for temporarily absent
residents. This may involve leaving the summons with someone residing at the
defendant's address or at the defendant's business. Thus, the court can acquire
jurisdiction without resorting to attachment.
9. Summons by Publication for Jurisdiction:
o If substituted service is insufficient to acquire jurisdiction, publication of
summons may be used. In this case, the attachment of the defendant’s property
can secure the court’s authority to try the case.

Remedy: Terceria (Claim of Third-Party Ownership)

• What is Terceria?
o A third party (a person not involved in the case) whose property is wrongfully
attached may avail of the remedy called terceria. This is done by filing an
affidavit stating their ownership or right to possession of the attached property.
• Procedure:
 o The third person must submit an affidavit to the sheriff, asserting their title or
right to the property. This affidavit must also be served to both the sheriff and the
attaching party (the plaintiff in the main case).
• Effect:
o Once the affidavit is filed, the sheriff is not bound to keep the property under
attachment unless the attaching party files a bond approved by the court. This
bond protects against damages if it is later determined that the property should not
have been attached.
• Purpose of the Bond:
o The bond indemnifies the sheriff and ensures that the plaintiff will be liable for
damages arising from wrongful attachment. It also protects the defendant’s
personal property or ensures the payment of damages if the plaintiff’s action fails.

2. Summary Hearing

• What is a Summary Hearing?

o If a third party’s property is wrongfully attached, they can also invoke the court’s
authority to hold a summary hearing. This hearing determines whether the
sheriff acted correctly or incorrectly in attaching the property.
• Court’s Role:
o The court cannot decide on the final ownership of the property but can determine
whether the sheriff acted properly. If it is found that the attachment was wrongful,
the court can order the property to be returned to the third person.

3. Motion for Leave to Intervene

• Intervention:
o A third-party claimant can file a motion for leave to intervene in the case. This
motion must be filed before judgment is rendered by the trial court.
• Limitation:
o After the judgment is rendered, particularly during the execution stage,
intervention is no longer allowed because the main case has already been
resolved.

4. Filing a Separate Action

• Separate Action:
o The third-party claimant is not limited to filing an affidavit or motion for
intervention. They may also file a separate action to vindicate their right to the
property.
 • Nullifying the Levy:
o Through a separate action, the third-party claimant can nullify the levy on the
property and claim damages for any unlawful seizure.
• Cumulative Remedies:
o The remedies available to a third-party claimant (terceria, summary hearing,
intervention, or separate action) are cumulative. The third party may use any one
or more of these remedies without being restricted to just one.

Discharge of Attachment: Motion and Counter-Bond

• Filing a Motion:
o The party whose property has been attached can file a motion to discharge the
attachment, either partially or fully. This motion is based on the security given for
the attachment.
• Cash Deposit or Counter-Bond:
o In addition to the motion, the party must:
1. Make a cash deposit.
2. Or file a counter-bond. The amount of the bond must equal the value
fixed by the court in the order of attachment, exclusive of costs.
▪ If the motion is limited to a specific property, the bond must be equal to
the value of that property only.
• Court Procedure:
o After due notice and a hearing, the court will decide whether to discharge the
attachment. There is no ex parte discharge, meaning the court cannot grant the
motion without a proper hearing.
• Purpose of Counter-Bond:
o The counter-bond or cash deposit secures the payment of any judgment in favor
of the attaching party. It serves as a replacement for the attached property, which
can later be levied upon after a final judgment.

2. Motion to Set Aside or Discharge the Attachment Without Counter-Bond

• Grounds for Discharge:

o Under Sec. 13, Rule 57, the party may also file a motion to discharge the
attachment without a counter-bond on the following grounds: a. Improper
issuance or irregularity in the enforcement of the attachment. b. Insufficient
bond posted by the attaching party. c. Excessive attachment (only the excess
will be discharged). d. The property is exempt from execution, such as family
homes or properties that are not subject to attachment.
• Filing the Motion:
o The motion to discharge can be filed before the property is levied, after the levy,
or even after the property has been released. Affidavits can support the motion,
and the attaching party can submit counter-affidavits to oppose it.
• Notice and Hearing:
 o Similar to the counter-bond process, the discharge must follow due notice and a
hearing. The court can only discharge the attachment after considering both
parties' arguments.

3. Effect of Discharge of the Attachment

• Return of Property:
o Once the court discharges the attachment, the attached property, or the proceeds
from any sale, must be delivered back to the party who filed the deposit or
counter-bond. The bond will stand in place of the attached property, protecting the
rights of both parties until the case is resolved.

Elaboration

1. Discharge by Counter-Bond:
o This remedy allows the party whose property was attached to retain their property
by posting a bond in its place. The process ensures that the party can continue to
use or possess their property while the case proceeds, without prejudicing the
attaching party’s claim.
2. Motion Without Bond:
o This alternative remedy is important in cases where the attachment was
improperly issued or the property is exempt from attachment (e.g., family homes).
This approach directly challenges the validity of the attachment itself, offering a
chance to correct any legal errors in its issuance.
3. Protection of Parties’ Rights:
o The process of discharging an attachment is designed to balance both parties'
interests, preventing wrongful deprivation of property while securing the
attaching party’s potential right to recovery.

Here are the summarized study notes on Damages for a Wrongful Attachment:

1. Right to Damages for Wrongful Attachment

• Rule 57, Sec. 20:

o A party can recover damages for improper, irregular, or excessive attachment,
even if the judgment on the main case is adverse to them.
o The attachment defendant can claim damages if they can establish that the
attachment was wrongful, regardless of the outcome of the main case. This
 ensures protection against the misuse of attachment, which can be decided
separately from the merits of the main case.

2. Basis for Recovering Damages

• Actual Damages:
o Actual damages may be claimed without proof that the attaching party acted in
bad faith. Even in cases of good faith, damages may still be awarded if the
attachment was improper.
o However, if it is proven that the attachment was malicious, the defendant may
recover not just actual damages, but also moral and exemplary damages.
• Requirements:
o The application for damages must be filed: a. Before trial, or b. Before appeal is
perfected, or c. Before judgment becomes executory.
o The applicant must show facts proving their right to damages, and a hearing is
required to ensure due process.

3. Filing for Damages on Appeal

• If the case is on appeal, and the appellate court rules in favor of the party against whom
the attachment was issued, the application for damages must be filed during the appeal,
with notice to the attaching party and their sureties. This prevents delays in awarding
damages while ensuring that all involved parties are properly informed.

4. Insufficient Bond or Deposit

• If the bond posted by the attaching party is insufficient to cover the damages, the
defendant may recover the damages from any other property of the attaching party that
is not exempt from execution.

5. Proof of Actual Damages

• To merit an award of actual damages for wrongful attachment, the attachment defendant
must:
o Provide the best evidence available to show the fact of loss or injury and its
amount.
 o The damages must be measurable and based on specific facts, avoiding
guesswork or speculation. If the claim involves unrealized profits, they must be
supported by independent evidence.

Elaboration

1. Protection from Wrongful Attachment:

o This rule ensures that a party whose property was wrongfully attached can recover
damages, even if they lose in the main action. It serves as a remedy against
excessive or improper use of attachment, which can harm the defendant.
2. Burden of Proof:
o The attachment defendant must provide solid proof of the damages incurred,
using the best available evidence. This requires establishing a clear connection
between the wrongful attachment and the damages, ensuring that the
compensation is reasonable and justified.
3. Types of Damages:
o Actual damages are always recoverable. Moral and exemplary damages may be
claimed if the wrongful attachment was done in bad faith or malice, offering
further recourse to defendants in cases of egregious abuse of the attachment
process.

Satisfaction of Judgment from Attached Property

• Section 15, Rule 57 provides a clear procedure for satisfying the judgment from the
property attached:
o (a) Sale of Property: The proceeds of any sale of perishable or other property
sold by the sheriff under court order are first applied to satisfy the judgment.
o (b) Sale of Remaining Property: If any balance remains due after the sale of
perishable property, other real or personal property of the debtor can be sold to
cover the remaining balance.
o (c) Collection of Debts: The sheriff can collect debts or credits owed to the
judgment obligor (debtor) by others, as determined by the court, and apply those
proceeds to satisfy the judgment.

2. Return by the Sheriff

• After the property is sold and/or debts collected, the sheriff must submit a written return
of his proceedings to the court and provide copies to all parties (Sec. 15, Rule 57).
• This ensures transparency and accountability in the sheriff's execution of the judgment.
3. Remaining Balance After Sale

• If the sale of attached property does not fully satisfy the judgment, the sheriff is required
to proceed with ordinary execution to collect the remaining balance.
• If the judgment is fully satisfied, the sheriff must return any unsold property and the
proceeds of the sale that were not applied to the judgment to the judgment obligor (Sec.
16, Rule 57).

4. Recovery from the Counter-Bond

• If a counter-bond was posted instead of property, the surety who issued the bond must
pay the amount due under the judgment to the judgment obligee. This can be recovered
after a summary hearing and with notice to the surety (Sec. 17, Rule 57).

5. Application of Cash Deposit

• Where a cash deposit was made instead of a counter-bond, the deposit is applied to the
judgment in the same manner as the attached property.
• If there is a balance remaining after satisfying the judgment, it will be refunded to the
depositor.
• If the judgment is favorable to the party whose property was attached, the entire sum
deposited is refunded (Sec. 18, Rule 57).

Elaboration

1. Order of Applying Proceeds:

o The rules ensure a structured process for liquidating the debtor’s assets, starting
with perishable goods, and extending to any other available property, to ensure
the judgment is satisfied in an orderly and equitable manner.
2. Sheriff's Return:
o The sheriff’s detailed report back to the court and the parties serves to keep
everyone informed about how the attached assets were handled and how much of
the judgment was satisfied, maintaining accountability.
3. Surety's Responsibility:
o A counter-bond serves as a guarantee of payment, placing the burden of
satisfying the judgment on the surety, which ensures that even if the attached
property isn't sufficient, the judgment can still be enforced.
4. Fairness in Refunds:
o The rules ensure fairness by refunding any excess proceeds or deposits back to the
party, showing a balanced approach to protecting both the creditor’s and debtor’s
rights during enforcement of judgments.