“My flesh and mind fail but GOD is the strength of my heart and my - A prior registration of an attachment lien

attachment lien creates a preference

portion forever.” –Ps. 73:26 - A purchaser subsequent to the attachment takes the property
subject to the said attachment; registration- constructive notice to
PROVISIONAL REMEDIES all persons
Rule 57: Preliminary Attachment  Effect of knowledge of previous unregistered sale
- equivalent to registration
I. Concepts on preliminary attachment  Length of time an attachment lien shall subsist
 Preliminary attachment defined - The lien continues until the debt is paid, or sale is had under
- A writ of PA is a provisional remedy issued upon order of the court execution issued on the judgment, or until the judgment is satisfied,
where an action is pending to be levied upon the property/ies of the or the attachment discharged or vacated in some manner provided
D, the same to be held by the sheriff as a security for the by law
satisfaction of whatever judgment that might be secured in the said X- compromise agreement
action by the attaching creditor against the D. R: it would defeat the purpose of the prov rem of attachment
 Writ of attachment defined  Nature of the lien or security obtained by attachment even before
- Attachment is a juridical institution intended to secure the outcome judgment
of the trial; it is enforced through a writ w/c is the process issued at - Fixed & positive security; a specific lien; vested interest; actual &
the institution or during the progress of an action commanding the substantial security; constitutes a cloud on the legal title; like
sheriff or other proper officer to attach property, rights, credits, or mortgage
effects of defendant to satisfy the demand of the plaintiff.  Distinctions between replevin & attachment
 Concept of provisional and ancillary REPLEVIN ATTACHMENT
- They are provisional bc they constitute temporary measures availed Available only where the Available even if the recovery of
of during the pendency of the action & they are ancillary bc they are principal relief sought is the personal property is only
mere incidents in & are dependent upon the result of the main recovery of possession of incidental relief sought in the
personal property, the other action
action
reliefs, like damages, being
 Attachment, a proceeding in rem, prior registration creates a merely incidental
preference Can be sought only where the D May be enforced to even if the
- Attachment is a proceeding in rem- against the particular property, is in the actual or constructive personalty is in the custody of a
enforceable against the whole world possession of the personalty 3rd person
- The attaching creditor acquires a specific lien on the attached involved
property w/c nothing can subsequently destroy except the very Extends only to personalty Extends to all kinds of property
capable of manual delivery whether real, personal, or
dissolution of the attachment or levy itself.
incorporeal
- The lien continues until the debt is paid, or sale is had under
Available to recover personalty To recover the possession of
execution issued on the judgment, or until the judgment is satisfied, even if the same is not being personal property unjustly
or the attachment discharged or vacated in some manner provided concealed, removed, or detained presupposes that the
by law disposed same is being concealed,
 removed, or disposed of to
prevent its being found or taken
by the applicant
Cannot be availed of if the Can still be resorted to even if
property is in custodia legis, as the property is in custodia legis
where it is under attachment or
was seized under a search
warrant
 Party to apply preliminary attachment
1. Plaintiff or
2. Any proper party
- The writ can be prayed for in a counterclaim by the D, in a cross-
claim by a co-party & a third party plaintiff on his third-party claim.
 Stage to avail preliminary attachment
1. At the commencement of the action; or
2. Any time before entry of judgment
 Mechanics to secure a writ of preliminary attachment
2 ways:
a. If at the commencement of the action:
The P must allege in the complaint:
1. That the case falls under any of the circumstances under
Rule 57 & pray for the issuance of a writ of PI
2. Attached to the complaint is the affidavit, executed either
by the applicant or of some other person, who personally
knows the facts;
3. The affidavit should state the ff. jurisdictional facts:
a. A sufficient COA exists
b. The case is one of those mentioned in Sec. 1, Rule 57
c. There is no other sufficient security for the claim sought
to be enforced
d. That the amount due to the applicant, or the value of
the property, the possession of which he is entitled to
relief, is as much as the sum for w/c the order is granted
above all legal counterclaims
e. The posting of the bond equal in the amount fixed by
the court
b. If at any time before entry of judgment:
- Affidavit stating the JF
 Preliminary attachment as one of interim measures in ADR
- Preliminary attachment against property or garnishment of funds in
the custody of a band or a 3rd person
 Non-compliance w/ formal requirements invalidate the writ of
attachment
- Failure to allege in the affidavit the reqs- defective; cannot be cured
by amendment
R: the affidavit is the foundation of the writ
w/o w/c, court has no jurisdiction; proceedings are null & void
 Meaning of “at the commencement or at any time thereafter”
- Date of the filing of the complaint; time before summons is served
 Preliminary attachment can be issued even case is on appeal
- The TC may even issue orders for the protection & preservation of
the rights of the parties w/c do not involve any matter litigated by
the appeal
 Subject of preliminary attachment & its purpose
1. Subject: property of the adverse party
2. Purpose: security for the satisfaction of any judgment
 Two-fold purpose of attachment (jurisprudence)
1. To seize the property of the debtor in advance of final judgment
& to hold it for purposes of satisfying said judgment
2. 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 D cannot be effected
 Grounds upon w/c attachment may issue
a. Action for Sum of Money or Damages on a Cause of Action
Arising from Law, Contract, Quasi-contract, Delict, or Quasi-
delict
CA: recovery of a specified amount of money or damages, other
than moral & exemplary
X- unliquidated, contingent, tort
 COA: arising from l, c, qc, d, qd
FAW: against a party who is about to depart from the PH w/
intent to defraud his creditors
b. Action for money or property embezzled or fraudulently
misapplied or converted to personal use
CA: for money/property embezzled or fraudulently misapplied
or converted to his own use
Embezzlement/misappropriation how committed:
Committed in the course of his employment or for a willful
violation of duty
Committed by whom:
1. Public officer
2. An officer of a corporation
3. Attorney, factor, broker, agent, clerk
4. Any other person in a fiduciary capacity (fiduciary
relationship herein must be established unlike in the first 3
since FR is presumed therein)
- Issuance of writ of A construed strictly against the applicant
R: bc the remedy of attachment is harsh, extraordinary, & summary
in nature
c. Action to recover possession of property unjustly or
fraudulently taken, detained, or converted
CA: to recover possession of property unjustly or fraudulently
taken, detained, or converted
Circumstance the property was concealed, removed, or
disposed:
To prevent its being found or taken by the applicant or an
authorized person
- What constitute removal & concealment
Removal: actual physical removal by the DR
Concealment: there should be a physical hiding or secreting of
property so that it cannot be seized to satisfy CR’s claims
- As distinguished from replevin
A: the PP belongs to the D; satisfaction of judgment
R: the PP belongs to the P; recover possession
d. Fraud in contracting the debt or incurring the obligation or in
the performance of obligation
CA: against a party who has been guilty of fraud
What circumstance the fraud is committed:
a. In contracting the debt or incurring the obligation upon w/c
the action is brought
b. In the performance of the obligation
- Fraud must relate to the execution of the agreement & must have
been the reason w/c induced the other party into giving consent
w/c he would not have; a debt is fraudulently contracted if at the
time of contracting it, the DR has a preconceived plan or intention
not to pay
- General averment of fraud will NOT suffice to support issuance of
the writ of PA
- Violation of the terms of trust receipts while estafa does NOT follow
that a writ of attachment should automatically issue
e. A party’s removal or disposal of his property, or is about to do
so
CA: action against a party
Against whom: party who has removed or disposed of his
property, or is about to do so with intent to defraud his
creditors
- Removal/disposal must be w/ intent to defraud D’s creditors
Factual basis on D’s intent to defraud must be clearly alleged in the
affidavit
X- execution of a mortgage in favor of another CR
- When alienation presumed entered in fraud of creditors
a. All contracts by virtue of which the debtor alienates property by
gratuitous title are presumed to have been entered in fraud of
creditors, when the donor did not reserve sufficient property to
pay all debts contracted before the donation.
 b. Alienations by onerous title are also presumed fraudulent when
made by persons against whom some judgment has been
rendered in any instance or some writ of attachment has been
issued. The decision or attachment need not refer to the
property alienated, and need not have been obtained by the
party seeking the rescission.
- Design to defraud creditors may be proved by the law of evidence
1. The fact that the consideration of the conveyance is fictitious
or is inadequate.
2. A transfer made by a debtor after suit has been begun and
while it is pending against him.
3. A sale upon credit by an insolvent debtor.
4. Evidence of large indebtedness or complete insolvency.
5. The transfer of all or nearly all of his property by a debtor,
especially when he is insolvent or greatly embarrassed financially.
6. The fact that the transfer is made between father and son,
when there are present other of the above circumstances.
7. The failure of the vendee to take exclusive possession of all the
property.
f. Action against a party who does not reside & is not found in the
PH, or on whom summons may be served by publication
CA: against a party
Against whom: party who does not reside & is not found in the
PH (natural persons only), or on whom summons may be served
by publication
- Party on whom summons may be served by publication
1. Service upon D whose identity/whereabouts are unknown
2. Non-resident, not found in the PH (Extraterritorial service)
3. Residents temporarily out of the PH
- Attachment not necessary when property already burdened by lien
Where a party in actual possession of the res subject to the lien is
before the court, the res is w/in the jurisdiction of the court for the
enforcement of the lien. A suit may be maintained to foreclose a
lien on property w/in the jurisdiction of the court, although some
interest or claim therein is held by a non-resident.
- When to issue an order granting the issuance of writ of attachment
1. Ex parte; or
2. Upon motion w/ notice & hearing
- Rule on ex parte issuance of writ of attachment
 - if the court finds the application sufficient in form &
substance
An order of attachment shall be granted only when it appears
by the affidavit of the applicant, or of some other person who
personally knows the facts, that a sufficient cause of action
exists, 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 affidavit,
and the bond required by the next succeeding section, must be
duly filed with the court before the order issues.
The party applying for the order must thereafter give a bond
executed to the adverse party in the amount fixed 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 finally adjudge that the
applicant was not entitled thereto.
- Hearing not generally necessary an application for PA
- When fraudulent disposal of property is raised, hearing is needed
- Hearing is required in case of fraud, embezzlement, &
misappropriation
- The courts to issue order granting the application for attachment:
1. The court in which the action is pending
2. The CA or SC
- SC to issue prov rem (Sec. 1, Rule 45)
The petition may include an application for a writ of preliminary
injunction or other provisional remedies & shall raise only questions
of law. The P may seek the sane prov rems by verified motion filed
in the same action/proceeding at any time during its pendency
- Issues related to jurisdiction on PA
1. The courts w/c grants or issues a provisional remedy is the court
w/c has jurisdiction over the main action.
 - inferior court
2. Distinction on validity of attachment between its issuance & its
implementation
No levy on attachment pursuant to the writ shall be enforced
unless it is preceded, or contemporaneously accompanied, by
service of summons, together with a copy of the complaint, the
application for attachment the applicant's affidavit and bond,
and the order and writ of attachment, on the defendant within
the Philippines. (Sec. 5, Rule 57)
During the issuance stage: prior or contemporaneous service of
summons is NOT necessary for validity of the writ of A
During the enforcement stage: prior/contemporaneous service-
necessary for validity
3. 3 stages on grant of provisional remedy of attachment
1. The court issues the order granting the application
2. Writ of attachment issues pursuant to the order granting
the writ
3. Implementation

In the first 2 stages, jurisdiction over the person of the D not

required. However, once the implementation of the writ
commences, the court must have acquired jurisdiction over the
D, for w/o such, the court has no power & authority to act in
any manner against the defendant.