Preliminary Attachment in Philippine Civil Procedure

Definition, Statutory Basis, Requirements, and Key Jurisprudence

Disclaimer: This article is for academic discussion only. It is not legal advice. Always verify with the latest rules and consult counsel for specific cases.

1. Statutory Anchors and Historical Context

Source	Key Provisions
Rule 57, Rules of Court (as amended, effective 1 May 2020)	Governs when, how, and on what grounds a writ of preliminary attachment (WPA) may issue, the bond requirement, levy procedures, dissolution, third-party claims, and damages for wrongful attachment.
Rule 13 (Service of pleadings), Rule 14 (Summons)	Cross-referenced for the indispensable requirement that summons and the attachment packet be served before, or at the latest contemporaneously with, levy—subject to narrow exceptions.
Civil Code, Art. 2236–2243	Enumerates property exempt from execution or attachment.
Jurisprudence (e.g., Davao Light v. Pineda, G.R. 180564, 8 Jan 2016)	Interprets the nature of attachment as a species of involuntary lien in custodia legis, not a transfer of ownership.

The remedy traces its origin to Spanish-era secuestro and American colonial practice, designed to prevent defendants from absconding, hiding assets, or disposing of property to frustrate a possible judgment.

2. Nature and Purpose

Provisional, ancillary, and preventive. It is available before final adjudication and exists only to the extent necessary to secure satisfaction of an eventual judgment.
In rem or quasi in rem vis-à-vis the attached res. The court acquires jurisdiction over the property, creating a lien that outranks subsequent encumbrances.
Not an execution. Levy on attachment does not authorize sale; it merely sequesters. Sale comes only after a favorable judgment and writ of execution.
Discretionary but issuable ex parte. The applicant need not notify the adverse party, but the court’s discretion must be exercised upon strict compliance with Rule 57.

3. Grounds for Issuance

(Rule 57 §1)

Recovery of a specified sum of money—defendant is about to depart the Philippines with intent to defraud creditors.
Embezzlement / fraudulent disposition—defendant is removing, disposing of, or secreting property to defraud creditors.
Action against party who is not a resident and not found in the Philippines.
Action to enforce a judgment or award in a foreign tribunal.
Surety’s action for indemnity—against a party whose accounts have become due.
Supplying of the Commission on Elections (§6 Art. IX, Const.)—rarely invoked outside electoral cases.
Other cases expressly provided by statute (e.g., Anti-Dummy Law forfeiture actions).

Key insight: The ground must be specifically alleged and factually established by affidavit, not merely parroted.

4. Requisites and Procedural Steps

Stage	Requirement	Practical Notes & Pitfalls
A. Verified Application	Must be in the complaint or a separate motion.	Mere verification error (e.g., lack of competent evidence in jurat) can be fatal.
B. Affidavit (Rule 57 §3)	Must state (1) sufficient cause of action, (2) one of the statutory grounds, (3) amount due (or property value) in pesos, and (4) that property to be attached is not exempt.	Asian Transmission v. CA stressed that a “general averment” of fraud is inadequate.
C. Attachment Bond	Applicant posts a bond equal to or greater than the amount claimed to answer for damages if writ is later dissolved.	Court cannot reduce on its own; must await motion under Rule 57 §12.
D. Judicial Assessment	Court must find prima facie entitlement; there is no “ministerial issuance.”	Orders must articulate factual basis—§1, Art. VIII Const. requirement of decisional transparency.
E. Service of Summons & Packet	No levy unless summons, complaint, application, affidavit, and bond are served prior or contemporaneously, except when: • defendant is a non-resident; • cannot be served personally/substituted despite diligent efforts; • action is in rem or quasi in rem (e.g., accion reivindicatoria where property itself is defendant).	2019 Amendments codify jurisprudence such as Mindanao Savings v. CA.
F. Levy/Garnishment	Sheriff attaches realty by annotation on title; personalty by physical possession; debts or credits by garnishment.	Garnishment summons served on garnishee places debt in custodia legis—garnishee becomes “virtual party.”
G. Sheriff’s Return & Inventory	Must be filed within 5 days under §5(b).	Omissions may lead to administrative liability.
H. Dissolution / Discharge	Defendant may (i) post counter-bond; or (ii) prove writ improperly or irregularly issued.	Quantum is greater of (a) bond amount or (b) value of property attached.
I. Third-Party Claim (§14)	Strangers may assert ownership; applicant may (i) indemnify sheriff, or (ii) require claimants to interplead.	Sheriff not liable if indemnified; otherwise, liable up to bond.
J. Damages for Wrongful Attachment (§20)	Claim via motion in the same action before trial or before judgment becomes final.	Separate action barred; causal link and proof of bad faith required.

5. Effect of the Writ

Creation of a statutory lien. It ranks from levy date and survives defendant’s insolvency.
In custodia legis. Attached property may not be seized by other courts of concurrent jurisdiction.
No dation in payment. Defendant cannot unilaterally satisfy the claim by offering the attached property—creditor must still obtain judgment or compromise.
Priority vs. subsequent encumbrances. Earlier mortgages prevail, but later voluntary dispositions are void as to attaching creditor. (Spouses Abiera v. Dumlao, G.R. 191061, 12 Apr 2021).

6. Property Exempt from Attachment

Statutory list (Civil Code Art. 2236–2243; Labor Code benefits; GSIS/SSS pensions) includes:

Family home (unless constituted with encumbrance before attachment).
Tools of trade, professional books.
Life insurance proceeds if unmixed with non-exempt assets.
One month supply of food/necessities.
Wages, salaries, and public servant compensation up to living necessities.

7. Remedies of the Adverse Party

Remedy	Who May Avail	Timeline	Effect
Motion to Discharge (Rule 57 §12)	Defendant	Anytime before judgment becomes final	Lifts attachment upon approval of counter-bond or finding of irregularity.
Petition for Certiorari (Rule 65)	Defendant or third party	60 days from notice if allegations show grave abuse	Does not automatically stay proceedings unless TRO/PI issued.
Damages under §20	Defendant or third-party claimant	Before judgment is final	Recoverable from bond surety and applicant.

8. Strategic Considerations for Litigants

Synchronize with asset tracing. File the case only when you can quickly identify attachable assets—Rule 57 rewards preparedness.
Mind the bond economics. Posting a bond equal to the entire claim can be cost-prohibitive; consider security from an accredited surety.
Use bank garnishment early. Philippine banks must freeze the amount upon receipt of the sheriff’s notice of garnishment; timing is crucial before funds are withdrawn.
Expect counter-strategy. Sophisticated defendants immediately post a counter-bond or move to dissolve on technical grounds (e.g., defective jurat, insufficiency of affidavit).
Beware of multiple attachments. Where several creditors attach the same property, first in time, first in right applies; coordinate filings to protect priority.

9. Selected Leading Cases

Case	G.R. No. / Date	Doctrine
Davao Light & Power v. Pineda	180564, 8 Jan 2016	Attachment creates a lien that is preferred over subsequent mortgages.
Ong v. Tating	48994, 29 Apr 1988	Affidavit must state factual details; conclusory allegations are void.
People’s Aircargo & Warehousing v. CA	101769, 13 Apr 1993	Garnishee becomes a “virtual party” and may appeal matters affecting it.
Mindanao Savings & Loan v. CA	184263, 14 Oct 2005	Levy without prior summons void in in personam actions unless diligent service impossible.
Banco de Oro v. Go	2013-1757, 4 Mar 2019	Surety bond may be discharged only after judgment becomes final or writ dissolved by court order.
Spouses Abiera v. Dumlao	191061, 12 Apr 2021	Attachment liens outrank later registration of deeds if levy predates registration.

10. Interaction with Related Remedies

Preliminary Injunction – restrains acts; attachment secures property. They may issue together (e.g., corporate misappropriation).
Receivership – places property in a fiduciary’s hands; attachment leaves it with the sheriff but under custodia legis.
Asset Preservation Orders (Anti-Money Laundering Act) – public enforcement; attachment is private litigant-initiated.
Amparo/Habeas Data – personal liberty/data protection; attachment focused on patrimonial claims.

11. Frequently Overlooked Nuances

Corporate defendants. Departure ground (¶1) applies to controlling officers if they carry the corporation’s assets abroad.
Foreign judgments. Attachment is almost indispensable because enforcement still requires recognition (Rule 39 §48).
Tax assessments. BIR has its own summary remedies; attachment is not available in CTA petitions for review.
Small claims. Preliminary attachment is unavailable—Rule SC 16 expressly bars provisional remedies.
Family courts. While Rule 57 is suppletory, judges often deny attachment absent compelling proof to protect minors’ interests.

12. Damages for Wrongful Attachment

Elements:

Writ was dissolved or judgment rendered against attaching party.
Defendant suffered actual damages.
Applicant acted with malice or without sufficient cause.

Recoverable items include premium costs of counter-bond, lost profits, and—if malice proven—moral and exemplary damages. Attorney’s fees may be awarded under Art. 2208 Civil Code.

13. Summary Checklist (Counsel’s Quick Reference)

✔︎	Step
▢	Draft verified application and supporting affidavit with specific facts and documentary exhibits.
▢	Compute bond (≥ claim’s amount/value) and secure surety’s signature.
▢	File complaint + application simultaneously; request ex parte hearing and order.
▢	Coordinate with sheriff; prepare detailed list of defendant’s assets, bank branches, TCT/CTO numbers.
▢	Ensure service of summons/packet before or with levy except under Rule 57 §5(b) exceptions.
▢	Monitor sheriff’s return; move for notice of garnishment to banks/debtors.
▢	Oppose or watch for motions to discharge; be ready to justify affidavit and bond sufficiency.
▢	After judgment, move for execution and sale of attached property if judgment not satisfied.
▢	Upon satisfaction, file motion to release attachment or discharge surety bond.

14. Closing Thoughts

Preliminary attachment is a potent—but technical—weapon. Courts scrutinize it because it imposes drastic restraints before liability is adjudicated. Success hinges on meticulous compliance with Rule 57’s textual requirements, strategic timing, and an appreciation of evolving jurisprudence following the 2019 Amendments. Litigants who deploy the writ responsibly gain leverage and assurance that a favorable judgment will not be reduced to a barren victory.

Prepared June 1, 2025, Asia/Manila.