In the realm of Philippine remedial law, Preliminary Attachment serves as a powerful provisional remedy. It is a rigorous process by which the property of an adverse party is taken into the custody of the law at the commencement of an action, or at any time before entry of judgment, as security for the satisfaction of any judgment that may be recovered.
Governed by Rule 57 of the Rules of Court, this "harsh" remedy requires strict compliance with legal requirements, as it temporarily deprives a defendant of their property before a final determination of liability.
Nature and Purpose
Preliminary Attachment is purely statutory. Its primary objectives are:
- To seize property of the debtor in advance to ensure that if a judgment is rendered for the plaintiff, it will not be "illusory" or unenforceable.
- To acquire jurisdiction over the action in instances where the court has no jurisdiction over the person of the defendant (attachment quasi in rem).
The Exclusive Grounds (Rule 57, Section 1)
A plaintiff or any proper party may, at the commencement of the action or at any time before entry of judgment, have the property of the adverse party attached on one or more of the following grounds:
1. Recovery of a Specified Amount
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. Condition: The defendant must be about to depart from the Philippines with intent to defraud his creditors.
2. Embezzlement or Abuse of Trust
In an action for money or property embezzled or fraudulently misapplied or converted to their own use by:
- A public officer;
- An officer of a corporation;
- An attorney, factor, broker, agent, or clerk;
- Any other person in a fiduciary capacity.
3. Fraud in Incurring the Obligation
In an action to recover the possession of property unjustly or fraudulently taken, detained, or converted, where the property (or any part thereof) has been concealed, removed, or disposed of to prevent its being found or connected by the applicant or an authorized officer.
4. Fraud in the Performance of the Obligation
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. This covers both dolo causante (fraud at the start) and dolo incidente (fraud during performance).
5. Removal or Disposal of Property to Defraud
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. Mere insolvency is not enough; there must be a specific intent to hinder, delay, or defraud.
6. Non-Resident Defendants
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.
Procedural Requirements for Issuance
To obtain a writ of preliminary attachment, the applicant must satisfy three stringent requirements:
I. The Affidavit
The applicant must file an affidavit stating:
- That a sufficient cause of action exists.
- That the case is one of those mentioned in Section 1 of Rule 57.
- That there is no other sufficient security for the claim sought to be enforced.
- The amount due to the applicant, or the value of the property they are entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims.
II. The Applicant’s Bond
The party applying for the order must give a bond executed to the adverse party in the amount fixed by the court. This bond answers for all costs which may be adjudged to the adverse party and all damages which they may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto.
III. The Order of Attachment
If the judge is satisfied that the grounds exist and the bond is sufficient, an order is issued requiring the sheriff to attach so much of the property in the Philippines of the adverse party (not exempt from execution) as may be sufficient to satisfy the applicant's demand.
The "Contemporaneous Service" Rule
While an order of attachment may be granted ex parte (without notice to the defendant), it cannot be enforced unless it is preceded or accompanied by:
- Service of summons;
- A copy of the complaint;
- The application for attachment;
- The applicant's affidavit and bond; and
- The order and writ of attachment.
Exceptions to this rule apply if the summons could not be served personally or by substituted service despite diligent efforts, or if the defendant is a non-resident.
Discharge of Attachment
A defendant whose property has been attached may seek its release through:
- Counter-bond: Filing a bond in an amount equal to the value of the property attached or the sum claimed.
- Motion to Quash: Proving that the attachment was improperly or irregularly issued (e.g., the ground alleged is false or the affidavit is defective).