A · Web viewPROVISIONAL REMEDIES We are going to review the concept of Provisional Remedies...

PROVISIONAL REMEDIES (Rule 57)

PROVISIONAL REMEDIESWe are going to review the concept of Provisional Remedies from Rule 57 to Rule 61. First of all, the word provisional is suggestive. It is something temporary. Provisional Remedies are remedies which are temporary and is defined by the Supreme Court as remedies which parties litigants may resort for the preservation of protection of their rights and interests and for no other purpose, during the pendency of the litigation. So, just to preserve the rights while the case is pending.

Q: What are the known Provisional Remedies? A: There are five (5).

[1] Rule 57- Preliminary Attachment;

[2] Rule 58- Preliminary Injunction;

[3] Rule 59- Receivership;

[4] Rule 60- Replevin; (used to be known as Delivery of Personal Property) and

[5] Rule 61- Support Pendente Lite

BASIC PRINCIPLES ABOUT PROVISIONAL REMEDIESFIRST: A provisional remedy is not a civil action.

It is just incidental or attached to an action. There is no such thing as an action for attachment. You cannot file a case for attachment. You can file a case to collect a sum of money coupled with a petition or application for preliminary attachment. So, it must be attached. It is not a remedy by itself but a remedy attached to a main action.

That is why the Supreme Court said in one case, "it is an ancillary remedy, it is not sought for its own sake but rather to enable the other party to seek relief from the main action."

SECOND: If you have a good cause of action, it does not follow that you can have a ground for a provisional remedy, that you can attach immediately.

For example, I will sue a debtor who has not paid me and I believe he has no defense. So, I believe that my chance of losing is zero. I am a sure winner, and even my lawyer agrees that the other party has no defense. Q: Can I attach his properties? A: No. In order to attach, let us say preliminary attachment, let us find out whether we have the grounds. If none, we will just file a case.

Thus, it does not follow that everytime you file a case for collection, you always file for attachment. As a matter of fact, under Section 20, the plaintiff may win the case but he is held liable for damages for attaching without a ground- illegal attachment.

THIRD: If the provisional remedy is granted, it does not mean that you are already the winner. You still have to win the main case.

Q: So, what happens if it turns out that you have no cause of action, the main action is dismissed? A: You are not just a loser, you can also be held liable for damages. For how in the world were you able to get the right to attach when you have no cause of action in the first place? In other words, even if your application for provisional remedies is granted, it is not a guaranty that you will win the case. You still have to prove the existence of a valid cause of action.

Property of LAKAS ATENISTA

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PROVISIONAL REMEDIES (Rule 57)

R U L E 5 7PRELIMINARY ATTACHMENT

Section 1. Grounds upon which attachment may issue.- At the commencement of the action or at any time before entry of judgment, a plaintiff 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:

In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors;

In 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;

In an action to recover possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by applicant or an authorized person;

In 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 thereof;

In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or

In 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. (1a)

PRELIMINARY ATTACHMENT – a remedy by which the property of the defendant is taken into the custody of law either at the commencement of action or at anytime before the entry of judgment as security.

Q: What are the changes under the new rule?A: The new rule states "At the commencement of the action or at any time before entry of judgment". The old rule's language is "at any time during the progress of the same". Meaning, while the case is going on. Actually, this is the same, but now it is clearer, "before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached".

"A plaintiff or any proper party." Q: Who is this proper party? A: The plaintiff, the defendant can attach in the counterclaim. The cross-claimant, 3rd-party defendant, they are also plaintiffs within the meaning of the law.

TYPES OF ATTACHMENT: [1] Preliminary Attachment (under rule 57);


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PROVISIONAL REMEDIES (Rule 57) [2] Final Attachment/ Levy in Execution [3] Garnishment.

Preliminary Attachment contemplates Rule 57. You attach the property while the case is going on, before judgment, or at the commencement, as security for the satisfaction of any judgment that you may recover.

Final attachment is an attachment issued to enforce a judgment or to satisfy a judgment, which has become final and executory. Meaning, we will attach the property of the defendant to be sold at a public auction for the purpose of satisfying a judgment.The other name for final attachment is levy on execution governed by Rule 39.

Garnishment is actually a variation of either attachment or execution. It is a species/type of attachment or execution for reaching credits belonging to a judgment debtor owing to him by a third person, stranger to the litigation. This is similar to sequestration. Example of garnishment: when you garnish the bank account of a depositor. You attach it. It is a credit since the bank is a debtor of the depositor.

The concept of garnishment is explained clearly by the Supreme Court in the case of Perla Compana de Seguros v. Ramolete, 203 SCRA 487. According to the SC, "Garnishment has been defined as a species of attachment for reaching any property or credits pertaining or payable to a judgment debtor. In legal contemplation, it is a forced novation by the substitution of creditors; the judgment debtor, who is the original creditor of the garnishee is, through the service of the writ of garnishment, substituted by the judgment creditor who thereby becomes the creditor of the garnishee." So, I owe you, you owe him, so by garnishment it is not with you that I am indebted with, it is with him already. In effect, there is a change of creditor.

Garnishment has also been described as a warning to a person having in his possession, property or credits of the judgment debtor, not to pay the money or deliver the property to the latter but rather to appear and answer the plaintiff's suits.

Q: How does the court acquire jurisdiction over the person of the garnishee? Do you have to serve him with summons?

A: The SC said (in the Perla Compania case) NO. It is not necessary that summons be served upon him. The Rules of Court themselves does not require that the garnishee be served with summons or impleaded in the case to make him liable. The trial court actually acquired jurisdiction over the garnishee when it was served with the writ of garnishment, which is the equivalent of summons. The garnishee becomes a “virtual party” to or a “forced intervenor” in the case and the trial court thereby acquires jurisdiction to bind him to compliance with all orders and processes of the trial court with a view to the complete satisfaction of the judgment of the court. That is the concept of garnishment.

Q: How do you distinguish a normal preliminary attachment from garnishment, although as I have said, garnishment could also be a variation of preliminary attachment or execution ?

GARNISHMENT PRELIMINARY ATTACHMENT

Normally directed to intangible properties (e.g. credits, collectibles, bank accounts).

Refers to tangibles (e.g. a car or a house).

Involves three (3) parties, namely: the creditor, debtor and garnishee.

Involves only two (2) parties, the creditor and the debtor.

In garnishment by preliminary attachment, there is no actual seizure of property but in garnishment by final attachment there is already a seizure. In other words, if I will garnish your account in the bank, the money would still be there. Nobody can withdraw from it. The sheriff cannot get the money. It is in the

In attachment, which is even preliminary, there is seizure of property and it will be placed under custodia legis. There is actual seizure.


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PROVISIONAL REMEDIES (Rule 57)bank.

Q: What is the nature of attachment proceedings?A: In rem or at least quasi in rem.(Ching Liu & Co. vs. Mercado, 67 Phil. 409). Even if the action is in personam, once there is an attachment, it is now converted into quasi in rem because a lien is acquired over a specific property of the defendant.(Banco Español vs. Palanca, 37 Phil. 921)

Q: What is the duration of the attachment?A: It is indefinite. It continues until the case is terminated, until the account is fully paid (assuming plaintiff wins), or until such time that the court will order it terminated or dissolved in accordance with certain grounds under the law.(Chunaco vs. Alano, Jan. 23, 1952)

Q: What are the GROUNDS FOR ATTACHMENT?

a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors.

So, the defendant is about to run away, with intent to defraud his creditors. Now, what is the change?

The old law says "in an action for recovery of money". Now, "for a specified amount of money or damages". This supports the ruling of the Supreme Court that for a ground for attachment to exist, the damages must be liquidated. So, if the damages are unliquidated, there can be no attachment.

That is why the law is clearer now. In moral and exemplary damages, there could be no preliminary attachment. Liquidated or actual, ok.

Q: What is the reason why in moral and exemplary damages there could be no attachment?A: Because the amount can’t be determined. "On a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors." What is the old law? Cause of action arising from contract“ only as compared to the new law, which includes all the five sources of obligation. That is why there is a need to compare this new rule with the old rule.

b) In 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;

The main action here was based on the act of malversation or estafa.

Q: Suppose you file a criminal case but not able to reserve the civil action, can you file a preliminary attachment?A: YES. Under Rule 127, Section 2 – “At the commencement of a criminal action xxx when the civil action for the recovery of civil liability arising from the offense charged is not expressly waived or the right to institute such civil action separately is not reserved, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused xxx”. c) In an action to recover possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by applicant or an authorized person;

The prior law speaks of personal property. Now, the word personal is removed. “Property“ (may refer to real or personal) unjustly or fraudulently taken xxx to prevent its being found or taken by applicant or an authorized person." That is inserted because the authorized person may be the sheriff or an attorney-in-fact.


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PROVISIONAL REMEDIES (Rule 57)d) In 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 thereof;

The old rule does not contain "in the performance thereof." Before, it is "guilty of fraud in contracting the debt." Meaning, the defendant exercised fraud from the very start of the obligation, in contracting. So, it is fraud in contracting the debt under the old rule. It is not fraud in the performance of an obligation.

Now, it is the same. Whether it is fraud in contracting the debt or in the performance of an obligation, both are grounds for attachment. Whether it’s dolo causante or dolo incidente. The law is broader.

Q: What does “in the performance thereof” mean?A: Meaning, the person was in good faith when he borrowed it but in the performance of the obligation, he contracted fraud. Ayaw na nyang magbayad!

e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or

Example: You file a case against B. Si B, dahan-dahan, he sold his assets. In this case, you can attach. f) In 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.

The party does not reside and is not found in the Philippines, or on whom summons may be served by publication. You connect this with summons. You cannot sue by publication when the action is in personam. So, you need to convert your action to in rem or quasi in rem.

Q: How do you convert an action in personam to action in rem or quasi- in rem?A: You attach the property. After attaching it, you now apply service of summons by publication under Rule 14. That is exactly the situation contemplated in the case of Magdalena Estate and all those modes of summons by publication.

Q: Are the grounds for attachment strictly construed?A: Yes. The SC said they are. The grounds enumerated are exclusive. In other words, what is not enumerated is not included. So, in case of doubt, the doubt is resolved in favor of the attached debtor. To borrow the language of the Supreme Court in the case of

SIEVERT vs. COURT OF APPEALSDecember 22, 1988

HELD: "the requirements of the rule in the issuance of preliminary attachment must be strictly and faithfully complied with in view of the nature of this provisional remedy which exposes the debtor to humiliation and annoyance."

ABOITIZ vs. COTABATO BUS LINE CO.(CBLC)June 17, 1981

FACTS: Defendant Cotabato Bus Line Company (CLBC) was on the verge of bankruptcy. The creditor Aboitiz Marketing was afraid since CLBC has many debts. Thus, they (Aboitiz) filed a case for preliminary attachment. Ground: the defendant is already in the verge of insolvency. It was granted by the lower court.

ISSUE: W/N the attachment was valid.

HELD: It was not a ground for preliminary attachment. You cannot find it in the Rules. So, attachment was illegal. Even if he is on the verge of insolvency but he is not running away from his creditors, you cannot attach. You cite another ground.

Section 2. Issuance and contents of order.- An order of attachment may be issued either ex parte or upon


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PROVISIONAL REMEDIES (Rule 57)motion with notice and hearing by the court in which the action is pending, or by the Court of Appeals or the Supreme Court, and must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, unless such party makes deposit or gives a bond as hereinafter provided in the amount equal to that fixed in the order, which may be the amount sufficient to satisfy the applicant's demand or the value of the property to be attached as stated by the applicant, exclusive of costs. Several writs may be issued at the same time to the sheriffs of the court of different judicial regions. (2a)

Q: How is an order of attachment issued?A: 1. ex parte 2. upon motion with notice and hearing.

Q: Can a writ of preliminary attachment be issued ex parte on the application of the plaintiff without the defendant required to be heard? Meaning, upon the filing of the complaint, you ask for attachment. Is this allowed?

A: YES. 1.) According to Filinvest v. Relova, 117 SCRA 420, the Supreme Court said: “Nothing in the Rules makes notice and hearing indispensable and mandatory requisites for the issuance of a writ of attachment. A writ of attachment may be issued ex parte”. There are only two (2) requirements under the law, in Sections 2 and 3. The Affidavit and Bond. There is no third requirement of a hearing.

The Relova Doctrine is now enshrined in section 2. So, it is now for the court to determine whether to issue immediately or not yet. But it can issue ex parte based on Sec. 2.

2.) Another reason why it is sometimes necessary to attach without an hearing is because of the urgency of the situation specially if your ground is that the defendant is departing from the country, or he is disposing of his assets. If a hearing will be conducted, it will give the defendant more time to conceal or dispose of his assets.

Also, in the case of

CUARTERO vs. CA212 SCRA 260

The SC said: No notice to the adverse party or hearing of the application for preliminary attachment is required in as much as the time that the hearing will take, will be enough to enable the defendant to abscond or dispose of his property before a writ of attachment is issued. In such a case, a hearing would render nugatory the purpose of the provisional remedies.

Q: Which court can issue an order of attachment?A: 1. Court where the action is pending, 2. Court of Appeals, 3. Supreme Court. The CA and the SC can issue the writ anywhere in the Philippines.

Section 3. Affidavit and bond required.- An order of attachment shall be granted only when it appears by the affidavit of the applicant, or 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 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,


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PROVISIONAL REMEDIES (Rule 57)and the bond required by the next succeeding section, must be duly filed with the court before the order issues. (3a)

There are TWO REQUIREMENTS: AFFIDAVIT + BOND.

The affidavit requirement. There must be a sworn/verified application and there must be an attachment bond to answer for the damages that the defendant may suffer.

Q: What are the allegations in the affidavit? A: Section 3.

1. That a sufficient cause of action exists.2. That the case is one of those mentioned in Section 1.3. That there is no other sufficient security for the claim sought to be enforced.This is an important allegation. Therefore, if an account is secured by a mortgage, you cannot attach. You already have a security.

BAR Q: What are the instances where the creditor, plaintiff, can still apply for a writ of preliminary attachment despite the fact that there is a mortgage to secure the debt?A: There are two (2) : 1) When the mortgage creditor abandons the mortgage and brings an ordinary

action to collect the principal loan or he simply applies for collection of sum of money. He is now an unsecured creditor and there is a ground for attachment. The creditor can now apply for attachment and he is not limited to attaching only the mortgage property, any property. So, that is all he has to do.

2) Even if the creditor will not abandon the mortgage, if he will foreclose the mortgage and in the action for foreclosure, there is a showing that the possible proceeds of the mortgage property are not sufficient to pay the entire debt and in the meantime the debtor is also trying to dispose of his assets.

4. That the amount due to the applicant, or the value of the property is as much as the sum for which the order is granted.

Q: Are these grounds for attachment, the affidavit, a strict requirement ?A: Yes, the SC said in the case of Jardine (Manila) v, CA, 171 SCRA 639, that the authority to issue an attachment must be strictly construed. Failure to allege in the affidavit the requisites required in the issuance of the writ of attachment renders the writ fatally defective.

The affidavit is the foundation of the writ and if none be filed, or if filed but fails to set out some facts required by law to be stated therein, there is no jurisdiction and the proceedings are null and void.

Another illustration is in the case of

TING vs. VILLARINAugust 17, 1989

FACTS: There was a writ of attachment. The allegation of the plaintiff says, "defendants are guilty of fraud in contracting the obligation, more specifically illustrated by their violation if the Trust Receipt Agreement."

HELD: There is no ground for attachment because to say that there is fraud is not enough. You must recite how the fraud as committed. It cannot be issued on a general averment such as one ceremoniously quoting a pertinent rule. The need for a recitation of factual circumstances to support the application becomes more compelling considering that the ground relied upon is fraud. Fraud cannot be presumed. In civil procedure, fraud must be made with particularity.

Section 4. Condition of applicant's bond.- 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


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PROVISIONAL REMEDIES (Rule 57)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. (4a)

Let us go to Section 5. How to attach property, the procedure.

Section 5. Manner of attaching property.- The sheriff enforcing the writ shall without delay and with all reasonable diligence attach, to await judgment and execution in the action, only so much of the property in the Philippines of the party against whom the writ is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, unless the former makes a deposit with the court from which the writ is issued, or gives a counter-bond executed to the applicant, in an amount equal to the bond fixed by the court in the order of attachment or to the value of the property to be attached, exclusive of costs. No 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 applicant's affidavit 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 efforts, or the defendant is a resident of the Philippines temporarily absent therefrom, or the defendant is a non-resident of the Philippines, or the action is one in rem or quasi in rem. (5a)

Take note of the last sentence of the first paragraph of Section 5. "xxx No 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 applicant's affidavit and bond, and the order and writ of attachment on the defendant within the Philippines."

Q: Did you notice that (underlined provisions)?A: That is the Davao Light Doctrine. DLPC v. CA, 204 SCRA. The leading case on attachment. It is now incorporated in the Rules of Court.

The attachment can be issued ex parte without even acquiring jurisdiction. The order of the writ of attachment can be issued even before the court has acquired jurisdiction, but to enforce it (the writ), summons must be served ahead or simultaneously. Otherwise, the writ of attachment will not be valid. That is the ruling in Sievert and DLPC.

As stated in the case of Cuartero, the grounds for attachment involve 3 stages: 1. The court issues order granting application. 2. The writ of attachment is issued pursuant to the order granting the writ. 3. The writ is implemented.

For the first two stages, it is not necessary that jurisdiction over the person of the defendant must be obtained. However, once implementation commences (third stage), it is required that the court must have acquired jurisdiction over the person of the defendant, for without such jurisdiction, the court has no power or authority to act in any manner against the defendant. The order issued by the court will not bind the defendant.

So, there must be a prior or contemporaneous service of summons, BUT as explained by the SC in the 1994 case of

Zachry Company Int'l. v. CA232 SCRA 329


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PROVISIONAL REMEDIES (Rule 57)The writ of attachment even if contemporaneously served to the defendant with summons, does not bind the latter if the service of summons is not valid.

HELD: The validity then of the order granting the application for a writ of preliminary attachment on 21 March 1990 and of the issuance of the writ of preliminary attachment on 26 March 1990 is beyond dispute. However, the enforcement of the preliminary attachment on 27 March 1990, although simultaneous with the service of the summons and a copy of the complaint, did not bind Zachry because the service of the summons was not validly made. When a foreign corporation has designated a person to receive service of summons pursuant to the Corporation Code, that designation is exclusive and service of summons on any other person is inefficacious. The valid service of summons and a copy of the amended complaint was only made upon it on 24 April 1990, and it was only then that the trial court acquired jurisdiction over Zachry's person. Accordingly, the levy on attachment made by the sheriff on 27 April 1990 was invalid. However, the writ of preliminary attachment may be validly served anew.

So, it also requires that the service of summons be valid.

Now, let us go to the last paragraph of section 5, which is also new:

"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 efforts, or the defendant is a resident of the Philippines temporarily absent therefrom, or the defendant is a non-resident of the Philippines, or the action is one in rem or quasi in rem."

Q: Which will come first, the attachment or service of summons?A: Under the Davao Light Doctrine, service of summons comes first. Because first of all, jurisdiction over the person of defendant must be acquired before attachment. You must bind the person first.

Two (2) years ago (1996), when this provision in the new rule was not yet in existence, one student who is now a lawyer, asked me how to reconcile this provision with provision on resident defendant on summons by publication because according to the SC, if the action is in personam you convert in first to in rem after which you proceed with summons by publication.

Q: How do you reconcile this, where in this section, summons must come first before publication. In the case of Magdalena Estate, attachment first before summons by publication, which is confirmed by section 1 [f] of Rule 57, one of the grounds for attachment. I cannot serve summons by publication without attaching first. That is paragraph [f] of section 1, which is the exact opposite of the Davao Light Ruling. A: Obviously, that is the exception to the Davao Light Doctrine. That exception is now provided under Section 5, last paragraph as read:

"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 efforts," so, that is by publication only. "Or the defendant is a resident of the Philippines temporarily absent therefrom, or the defendant is a non-resident of the Philippines, or the action is one in rem or quasi in rem."

In this provision, the purpose of summons by publication is not to acquire jurisdiction over the person but only for the purpose of due process and that exception is now incorporated in the Rules. That is not covered by the DLPC case.

Take Note: The GENERAL RULE is Service of Summons first before Attachment (Davao Light case)Exception: Section 5, last paragraph. There must first be an attachment before service of summons.

Section 6. Sheriff's return.- After enforcing the writ, the sheriff must likewise without delay make a return thereon to the court from which the writ is sued, with a full statement of his proceedings under the writ and a complete inventory of the property attached, together with any counter-bond given by the party against


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PROVISIONAL REMEDIES (Rule 57)whom attachment is issued, and serve copies thereof on the applicant. (6a)

Sheriff makes a report after the implementation of the writ.

Section 7. Attachment of real and personal property; recording thereof.- Real and personal property shall be attached by the sheriff executing the writ in the following manner:

(a) Real property, or growing crops thereon, or any interest therein, standing upon the record of the registry of deeds 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 the attachment is issued and held by any other person, or standing in the records of the registry of deeds in the name of any other person, by filing 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. Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof.

The registrar of deeds must index attachments filed 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 record. If the attachment is not claimed on the entire area of the land covered by the certificate of title, a description sufficiently accurate for the identification of the land or interest to be affected shall be included in the registration of such attachment;

(b) Personal property capable of manual delivery, by taking and safely keeping it in his custody, after issuing the corresponding receipt therefor;

(c) Stocks or shares, or an interest in stock or shares, of any corporation or company, by leaving with the president or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ;

(d) Debts and credits, including bank deposits, financial interest, royalties, commissions and other personal property not capable of manual delivery, by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ;

(e) The interest of the party against whom


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PROVISIONAL REMEDIES (Rule 57)attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devisee, by serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached. A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned.

If the property sought to be attached is in custodia legis, a copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such property. (7a)

Q: With respect to the manner of serving the writ of attachment, how do you do it?A: It depends on what you are going to attach. If it is real property, i.e. parcel of land, refer to paragraph [a]. If it is a refrigerator, capable of manual delivery, refer to paragraph [b]. This is also the manner of execution. How to levy on execution has the same procedure. If it is shares of stocks, refer to paragraph [c].

There is one recent case regarding section 7[c]. The 1995 case of Phil. Export and Import Corp. v. CA, 251 SCRA 257, which is also related to Corporation Code.

Q: When you attach shares of stock under Section 7, is it necessary to record or annotate it in the corporation's stock and transfer book? Suppose there is no annotation, is there a valid attachment?

A: The Court said: It is not necessary. Both the Rules of Court and the Corporation Code does not require annotation in the corporation's stock and transfer book for the attachment of shares of stock to be valid and binding on the corporation and third parties. Attachment of shares of stock is not included in the term "transfer" as provided in Section 63 of the Corporation Code. There is no transfer. You are just acquiring a lien. The debtor is still the owner. There is no need for said annotation.

On Section 7(d)- Debts and credits, including bank deposits, financial interest, royalties, commissions and other personal property not capable of manual delivery, by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ.

This is what we call GARNISHMENT. The new rule includes bank deposits, financial interest, royalties, commissions. In the case of

DE LA VICTORIA vs. BURGOS245 SCRA 374 (1995)

Q: Can you garnish the funds of the government?A: No, it is prohibited.

FACTS: In this case, what was garnished was the salary check of an assistant prosecutor. Maybe he does not want to pay his debt. Since his salary is taken from the DOJ, they have checks which will be given to the prosecutor to distribute. In this case, the check was in the hands of the City Prosecutor. It was garnished. “Do not give it to the assistant prosecutor because he has a debt”.

ISSUE: Was there a valid attachment?

HELD: No. In as much as the said check was not yet delivered to the payee (prosecutor), it did not belong to him and it still had the character of public funds. And as a necessary consequence, the check cannot be garnished. The rationale behind this doctrine is the obvious consideration of


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PROVISIONAL REMEDIES (Rule 57)public policy. Public funds cannot be garnished. It is only after the check has been given to the payee that you can garnish it.

Q: Can I attach your share in the estate of the deceased although no specific property yet?A: Yes. Under Section 7(e).You just serve the executor or administrator a copy of the writ and notice .The same shall also be filed in the office of the Clerk of Court where the estate is being settled.

Q: Can property which is already attached be attached all over again?A: Yes. Last paragraph of section 7. "If the property sought to be attached is in custodia legis, a copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such property."

So, a property attached may be attached again but you must inform the court which already attached it.

Q: What is the amendment under the new Rules?A: "xxx filed with the proper court or quasi-judicial agency xxx". Thus, it may be attached not only by the court but also by NLRC, etc. You can attach it but you must inform them of the attachment of the property already attached.

Section 8. Effect of attachment of debts, credits and all other similar personal property.- All persons having in their possession or under their control any credits or other similar personal property belonging to the party against whom attachment is issued, or owing any debts to him, at the time of service upon them of the copy of the writ of attachment and notice as provided in the last preceding section, shall be liable to the applicant for the amount of such credits, debts or other similar personal property, until the attachment is discharged, or any judgment recovered by him is satisfied, unless such personal property is delivered or transferred, or such debts are paid, to the clerk, sheriff, or other proper officer of the court issuing the attachment. (8a)

Section 9. Effect of attachment of interest in property belonging to the estate of a decedent.- The attachment of the interest of an heir, legatee, or devisee in the property belonging to the estate of a decedent shall not impair the powers of the executor, administrator, or other personal representative of the decedent over such property for the purpose of administration. Such personal representative, however, shall report the attachment to the court when any petition for distribution is filed, and in the order made upon such petition, distribution may be awarded to such heir, legatee, or devotee, but the property attached shall be ordered delivered to the sheriff making the levy, subject to the claim of such heir, legatee, or devisee, or any person claiming under him.

Section 10. Examination of party whose property is attached and persons indebted to him or controlling his property; delivery of property to sheriff.- Any person owing debts to the party whose property is attached or having in his possession or under his control any credit or other personal property belonging to such party may be required to attend before the court in which the action is pending, or before a commissioner appointed by the court, and be examined on oath respecting the same. The party whose property is attached may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The court may, after such examination, order personal property capable of manual


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PROVISIONAL REMEDIES (Rule 57)delivery belonging to him, in the possession of the person so required to attend before the court, to the delivered to the clerk of the court or sheriff on such terms as may be just, having reference to any lien thereon or claim against the same, to await the judgment in the action. (10a)

You can be required to appear before the court for further questioning. So, the rules under Rule 39, Sections 36 & 37 with respect to the examination of judgment obligor is available also in preliminary attachment.

Section 11. When attached property may be sold after levy on attachment and before entry of judgment.- Whenever it shall be made to appear to the court in which the action is pending, upon hearing with notice to both parties, that the property attached is perishable, or that the interests of all the parties to the action will be subserved by the sale thereof, the court may order such property to be sold at public auction in such manner as it may direct, and the proceeds of such sale to be deposited in court to abide the judgment in the action. (11a)

Normally, in Preliminary Attachment, property is not sold. It is just a security.Exception: Section 11.

1. If it is perishable. E.g. rice2. If the interest of the parties to the action will be subserved by the sale thereof.E.g. A piece of land. Somebody wants to buy it five times higher than the assessed value. Makakabenefit ang parties!

Q: What are the remedies of a defendant whose property has been attached? Is there a way of helping him?A: Yes. Look at Sections 12 and 13.

Section 12. Discharge of attachment upon giving counter-bond.- After a writ of attachment has been enforced, the party whose property haw been attached, or the person appearing on his befalf, may move for the discharge of the attachment wholly or in part on the security given. The court shall, after due notice and hearing, order the discharge of the attachment if the movant makes a cash deposit, or files a counter-bond executed tot he attaching party with the clerk of the court where the application is made, in an amount equal to that fixed by the court in the order of attachment, exclusive of costs. But if the attachment is sought to be discharged with respect to a particular property, the counter- bond shall be equal to the value of that property as determined by the court. In either case, the cash deposit or the counter- bond shall secure the payment of any judgment that the attaching party may recover in the action. A notice of the deposit shall forthwith be served on the attaching party. Upon the discharge of an attachment in accordance with the provisions of this section, the property attached, or the proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the counter-bond, or to the person appearing on his behalf, the deposit or counter-bond aforesaid standing in place of the property so released. Should such counter-bond for any reason be found to be or become insufficient, and the party furnishing the same fail to file an additional counter- bond, the attaching party may apply for a new order of attachment.


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PROVISIONAL REMEDIES (Rule 57)Section 13. Discharge of attachment on other grounds.- The party whose property has been ordered attached may file a motion with the court in which the action is pending, before or after levy or even after the release of the attached property, for an order to set aside or discharge the attachment on the ground that the same was improperly or irregularly issued or enforced, or that the bond is insufficient. If the attachment is excessive, the discharge shall be limited to the excess. If the motion be made on affidavits on the part of the movant but not otherwise, the attaching party may oppose the motion by counter-affidavits or other evidence in addition to that on which the attachment was made. After due notice and hearing, the court shall order the setting aside or the corresponding discharge of the attachment of it appears that it was improperly or irregularly issued or enforced, or that the bond is insufficient, or that the attachment is excessive, and the defect is not cured forthwith. (13a)

REMEDIES:

First remedy is for the defendant to put up a counter-bond to dissolve the attachment. So, the counterbond will take the place of the attached property. Or, a cash deposit equal to the claim of the plaintiff.

Second remedy is Section 13. The defendant will file a motion to discharge the attachment. Grounds:

1. that it was improperly or irregularly issued.2. that it was improperly or irregularly enforced.3. that the bond of the plaintiff is insufficient.

Q: What is the amendment?A: The phrase, or enforced. Before, it was improperly or irregularly issued. Now, it is with "or enforced, or that the bond is insufficient." That is another ground to move to discharge an attachment.

Let us go to Section 12.

Q: Is there such a thing as partial discharge ? For example, I will attach five (5) parcels of land. The defendant will say, because somebody wants to buy one of them, "I am moving to discharge only one of them and I will put up a counterbond equal to the value of one only." In effect, he is asking for a partial discharge based on a partial counterbond. Is this allowed ?

A: Yes, it is now allowed in the new law, which is not found in the old law. Look at section 12, 3rd sentence, starting with the word "but": "But if the attachment is sought to be discharged with respect to a particular property, the counter-bond shall be equal to the value of that property as determined by the court."

So, it is allowed. Like an installment, partial discharge by the partial counter-bond. Before, it was all or nothing.

Q: When a defendant puts up a counter-bond under section 12, is the attachment earlier made automatically discharged?A: No, according to the case of Belisle Finance vs. State Investment House, (151 SCRA 360) it is only after hearing and the judge has ordered the discharged of the attachment can it be valid. There must be an order, mere filing would not suffice.

Q: Can a person file a counter-bond and at the same time move to discharge? Meaning, I will file a counter-bond to discharge under section12 and then I will move to discharge under section 13. Can you do that, avail of the two (2) sections?A: Well, if you will follow the ruling in the case of


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PROVISIONAL REMEDIES (Rule 57)CALDERON vs. IAC

155 SCRA 531

The answer is YES. The Court said: Well, the defendant would like to question the legality of the attachment but he is in a hurry, because there would be a hearing, which would delay him. So, what should he do? He can file a counter-bond without waiving his right to hearing or he will file a counter-bond with respect to only one property and continue the hearing under Section 13 with respect to the other property. You do not waive Section 13 because you applied Section 12.

BUT there was this contrary ruling in the case of

MINDANAO SAVINGS AND LOAN ASSOCIATION vs. CA172 SCRA 480

HELD: Objection to the impropriety or irregularity of writ of attachment may no longer be invoked once a counter-bond is filed. By filing a counter-bond under Section 12, he may not file another motion under Section 13 to quash the writ for impropriety or irregularity. Why? The writ had already been quashed by filing a counter-bond, hence, another motion to quash would be pointless. That is also logical.

But it would seem that there is something wrong about the case especially where there is only a partial counter-bond under Section 13.

Let us read the first sentence of Section 13. "The party whose property has been ordered attached may file a motion with the court in which the action is pending, before or after levy or even after the release of the attached property , for an order to set aside or discharge the attachment on the ground that the same was improperly or irregularly issued or enforced, or that the bond is insufficient."

Did you notice that phrase? (underlined one)That is not present under the old law. You can file a motion to the court to discharge attachment before or after levy or even after they released the attached property.

So, why will I file a motion to discharge it when it is already released? Obviously, it must have been released by virtue of a counter-bond. In other words, this amendment seems to support the CALDERON DOCTRINE that you can avail of the discharge under Section 13 and have the property discharged without waiving your right to question the validity/correctness of attachment. These are the phrases found in the new law not found in the old law.

Q: Who has the burden of proof? Is it the burden of the defendant to prove that the attachment is improper or irregular, or is it the burden on the part of the plaintiff to show that the attachment is proper?A: Based on decided cases, it is the plaintiff who has the burden to prove the regularity on the challenge made by the defendant. In the case of FILINVEST where the attachment was on the ground of fraud - that the defendant committed fraud in contracting the obligation. It is not the duty of the defendant to prove the lack of fraud. It should be the plaintiff who will prove the regularity because fraud is not presumed.

Same message in the case of

BENITEZ VS. IAC154 SCRA 41

HELD: For the purpose of securing the attachment, the affidavit of the plaintiff is sufficient, but for purposes of determining whether the allegations therein are true or not, there must be a hearing.The denial of the writ of preliminary attachment under Section 13 without conducting a hearing and requiring substantiation of the allegation of fraud and the allegation is tantamount to grave abuse of discretion on the part of the judge.

Meaning, affidavit supporting the application for issuance of preliminary attachment may be sufficient to justify the issuance of the preliminary attachment writ. But it cannot be


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PROVISIONAL REMEDIES (Rule 57)considered as proof of the allegation therein.So, these are merely conclusions of law, not statement of facts.

A writ of attachment may be discharged without filing a cash bond or counter-bond pursuant to section 13. However, there is also a limitation which is laid down in the case of MINDANAO SAVINGS and also in the case of CUARTERO vs. CA, and the situation is something like this:

Suppose, I am the defendant and I will move to discharge the attachment because it was improperly issued. Why? Because the plaintiff has no cause of action against me. Meaning, if he has no cause of action, then the case is dismissible. and if the case is dismissible, then there is no basis for a writ of preliminary attachment.

Q: Should the court act on that kind of motion?A: The SC said: You cannot! Kasi, yung ground mo na " there is no cause of action" is now going to the merits of the case if you will require the plaintiff to prove his cause of action. It is no longer a hearing on a motion to discharge an attachment but is already a trial on the main action.The SC said in MINDANAO SAVINGS and in CUARTERO : “An attachment may not be resolved by showing of its irregular of improper issuance which is upon a ground which at the same time the adverse cause of action in the main case. Since an anomalous situation will arise when the issues in the main case will be ventilated and resolved in a mere hearing of a motion.”

OLIB VS. PASTORAL188 SCRA 692

Suppose,the main action has already been decided by the court and appealed to the CA. Tapos merong nang attachment. At the same time, the defendant would like to discharge the attachment either under Sections 13 or 12.

Q: Where should the defendant file the motion to discharge the writ, RTC or CA?SC: It is the CA and no longer the RTC where the main action is appealed. The attachment which may have been issued as an incident of the action is also considered appealed and so removed from the jurisdiction of the RTC.

In the case of:

CHEMICAL EXPORT AND IMPORT VS. IAC

FACTS: Plaintiff filed a case against defendant. And the plaintiff secured a preliminary attachment. So the defendant's property is attached. So, the case is pending while there was an attachment. While the case is pending, they entered into compromise agreement and therefore there was judgment based on the compromise agreement.

ISSUE: Is the attachment lien over the property of the defendant dissolved or vacated because of the compromise agreement?

HELD: It is not deemed vacated. An attachment lien continues until the debt is paid or until judgment is satisfied or the attachment is discharged or vacated in the same manner provided by law. The parties to the compromise agreement would not be deprived of the protection provided by the attachment lien especially in an instance where one remedy is bases on the obligation of the contract or agreement. If we were to rule otherwise, you would in effect create a back door by which debtors can easily escape its creditors. Consequently, we would be faced with an anomalous situation where a debtor in order to have time in order to dispose of his property would enter into a compromise agreement in which he has no intention of honoring in the first place -- the purpose of provisional remedy or attachment would does be lost. It would become by analogy a toothless tiger.

So, let us wait for the judgment to be satisfied until attachment is discharged.

Q: Is there partial discharge of attachment, where I will move to discharge not the entire


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PROVISIONAL REMEDIES (Rule 57)property but only a certain portion ?A: That is allowed under Section 13 which is not found under the Old Law. This is found in the second sentence, " If the attachment is excessive, the discharge shall be limited to the excess."

Example, my obligation is one million and the attachment is 1.5 million. So, I can ask for partial discharge of P500, 000. Before, under the Old Law it is not allowed. But now, it is allowed.

Section 14. Proceedings where property claimed by third person - If the property attached is claimed by any person other than the party against whom attachment had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds of such right or title, and serves such affidavit upon the sheriff while the latter has possession of the attached property, and a copy thereof upon the attaching party, the sheriff shall not be bound to keep the property under attachment, unless the attaching party or his agent, on demand of the sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied upon. In case of disagreement as to such value, the same shall be decided by the court issuing the writ of attachment. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within 120 days from the date of filing of the bond.

The sheriff shall not be liable for damages for the taking or keeping of such property to any such third-party claimant, if such bond shall be filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property or prevent the attaching party from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or separate action.

When the writ of attachment is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required ,and in case the sheriff is sued for damages as a result of the attachment, he shall be represented by the Solicitor General, and if held liable therefor, the actual damage adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose.

Section 14 is almost a word for word reproduction of Rule 39, Section 16 which is Terceria or third party claim. In Rule 39, the property levied belongs to a third person who is not the defendant of the case, so the remedy is TERCERIA.

Ito naman (Section 14), the property attached by way of preliminary writ of attachment does not belong to the defendant. So, you can file a third-party claim.

Q: Can the 3rd-party question the attachment in the same case? Can he file his objection, ask for the discharge of the attached property in the same case where he is not a party ? A: YES, that is allowed!

That is a ground for intervention, remember?

Q: What is the fourth ground for intervention?A: That the intervenor is so situated that he is adversely affected by the property in the custody of the court. So, it is a ground for intervention that the property attached is not owned by the defendant.


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PROVISIONAL REMEDIES (Rule 57)Q: Suppose there is already a writ of execution under Rule 39-- there is already a decision and writ of execution and your property is erroneously levied in the same situation, can you question the unlawful levy under the same case?A: As a general rule, NO! Because there could be no intervention---since there is already a judgment. The remedy is a separate action.

In the former example, intervention is proper because there is yet no judgment. But in the latter--- there is a judgment already. Kung meron nang judgment, wala nang intervention.

REMEDIES OF THIRD PERSONS:

1. File an independent action under Section 14 2. File a 3rd-party claim.3. File a motion for intervention.

Section 15.Satisfaction of judgment out of property attached; return of the sheriff. - If judgment be recovered by the attaching party and execution issue thereon, the sheriff may cause the judgment to be satisfied out of the property attached, if it be sufficient for that purpose in the following manner:

(a) By paying to the judgment obligee the proceeds of all sales of perishable or other property sold in pursuance of the order of the court, or so much as shall be necessary to judgment;

(b) If any balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff's hands or in those of the clerk of the court;

(c) by collection from all the persons having in their possessions credits belonging to the judgment obligor, or owing debts to the latter at the time of the attachment of such credits debts, the amount of such credits and debts as determined by the court in the action stated in the judgment, and paying the proceeds of such collection over to the judgment obligee.

The sheriff shall forthwith make a return in writing to the court of his proceeding under this section and furnish the parties with copies thereof.

Well, there is no problem if a property is attached and when the defendant loses, wala ng problemang maghanap pa ng property to levy because under Section 15, the judgment can be satisfied out of the property attached. So, it is more of a security.

Section 16. Balance due collected upon an execution; excess delivered to judgment obligor. - If after realizing upon all the property attached, including the proceeds of any debts or credits collected, and applying the proceeds to the satisfaction of the judgment, less the expenses of proceeding upon the judgment, any balance shall remain due, the sheriff must proceed to collect such balance as upon ordinary execution. Whenever the judgment shall have been paid, the sheriff upon reasonable demand, must return to the judgment obligor the attached property remaining in his hands, and any proceeds of the sale of property attached not applied to the judgment.


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PROVISIONAL REMEDIES (Rule 57)Section 17. Recovery upon the counter-bond. - When the judgment has become executory, the surety or sureties on any counter-bond given pursuant to the provisions of this Rule to secure the payment of the judgment shall become charged counter-bond and bound to pay the judgment obligee upon demand the amount due under the judgment, which amount may be recovered from such surety or sureties after notice and summary hearing in the same action.

Now, suppose the property is released from attachment because of the counter bond under section 17 the plaintiff will have to enforce the judgment against the sureties of the counter bond. Did you notice that under section 17, it starts with a phrase: " When the judgment has become executory, the surety or sureties will be held liable for the counter bond."

Q: Suppose, the judgment is not yet final and executory and there is no execution pending appeal under Rule 39,Section 2. Is the surety of the counter-bond liable for the

judgment in an execution pending appeal ?A: Under the present Rule, NO MORE! It can be applied to execution pending appeal. This is the reversal of the case PHILIPPINE BRITISH ASSURANCE CORPORATION vs. IAC, 15O SCRA 530. In this case, the SC said: A counter bond can be liable for any judgment whether final or executory or execution pending appeal because Section 17 does not distinguish hat kind of judgment.

But now, iba na ang ruling---dahil ang wording ngayon "when the judgment has become executory".

So, the ruling in PHIL. BRITISH ASSURANCE is deemed abandoned.

Section 18. Disposition of money deposited. -Where the party against whom attachment had been issued has deposited money instead of giving counter-bond, it shall be applied under the direction of the court 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 the judgment is in favor of the party against whom attachment was issued, the whole sum deposited must be refunded to him or his assignee.

Section 19. Disposition of attached property where judgment is for party against whom attachment was issued. - If judgment be rendered against the attaching party, all the proceeds of sales and money collected or received by the sheriff, under the order of attachment, and all property attached remaining in any such officer's hands, shall be delivered to the party against whom attachment was issued, and the order of attachment discharged.

Under this Section (19), when the judgment for the defendant-- so nanalo ang defendant, what happened to the attached property? Well, of course, it will be ordered released.

Q: Is the release automatic or must there be an order of release ? A: There must be an order for the release. This was taken from the case of OLIB vs. PASTORAL. The order of attachment is not deemed dissolved upon the rendition of judgment upon the defendant. The order of attachment is deemed discharged when the judgment becomes final and executory and which is not deemed on appeal.

Section 20. Claim for damages on account of improper, irregular or excessive attachment. - An application for damages on account of improper, irregular or excessive attachment must be filed before the trial or before appeal is perfected or before the judgment becomes executory, to


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PROVISIONAL REMEDIES (Rule 57)the attaching party and his surety or sureties, setting forth the facts showing his right to damages and the amount thereof. Such damages may be awarded only after proper hearing and shall be included in the judgment on the same case.

If the judgment of the appellate court be favorable to the party against whom the attachment was issued, he must claim damages sustained during of the appeal by filing an application in the appellate court to the party in whose favor the attachment was issued or his surety or sureties, before the judgment of the appellate court becomes executory. The appellate court may allow the application to be heard and decided by the trial court.

Nothing herein contained shall prevent the party against whom the attachment was issued from recovering in the same action the damages awarded to him from any property of the attaching party not exempt from execution should the bond or deposit given by the latter be insufficient or fail to fully satisfy the award.

Q: Is it possible for the plaintiff to win the case and for the defendant to win the case for the counterclaim? Can the plaintiff win the case but still liable for unlawful attachment? A: YES! With more reason if the plaintiff lost the case for he will now answer for all the damages suffered by the defendant while the attachment was going on. That is why there could be an application for improper, irregular or excessive attachment.

Take note that under the new case--- the attachment was improper, irregular or excessive.

Now, do not confuse Section 20 with Section 17. Section 17 is recovery upon the counter bond---here the defendant lost the case. In Section 20, it is the claim for damages against the attachment but also claimed by the defendant.

Q: When are you going to file your claim for damages?A: Before the trial or before the appeal is perfected or before the judgment becomes final and executory. Ibig sabihin niyan, you must file your claim for damages in the same case. Notify the surety.

Q: Can you file another case for damages ? A: NO, it is prohibited. It must be claimed and resolved in the same action.

Q: How do you file a claim for damages where the attachment was filed before trial? A: Simple, by way of counterclaim by the defendant in his answer.

Q: Is the attachment bond posted by the surety liable when actually according to the surety the plaintiff stops paying his premium years ago?A: Yes, a bond is not deemed extinguished by reason alone of such non-payment. Otherwise, the party can diminish his liability by simply not paying the bond.

CALDERON vs. IAC155 SCRA 531

FACTS: The defendant posted a counter-bond and then later on the defendant is running against the attachment bond. I put a counter bond but I'm still holding you liable for the attachment bond. Sabi ng Surety Company, “NO MORE! The attachment bond was deemed automatically dissolved when you posted your counter bond---so walang attachment bond--- so ano pa ang liability namin?”

HELD: You are wrong again. What is dissolved is the attachment and not the bond. The bond continues to be liable until the end of the case. What is dissolved or discharged is the writ of attachment not the attachment bond. It could be used to be held liable. The liability of the surety in proper or regular attachment subsists despite the counter bond posted by the defendant.


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PROVISIONAL REMEDIES (Rule 57)Now, this last paragraph of Section 20 is not found in the Old Law--- Q: If the attachment bond is not enough---can you hold the plaintiff liable for his personal property?

A: Yes. That is allowed and it is to be recovered in the same action. There is no need of filing another case against him. If the attachment bond is not sufficient, you can run against the property of the attached property not exempt from execution and you recover them in the same action.

-oOo-


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