I. Overview and Purpose

Preliminary attachment is a provisional remedy under the Rules of Court that allows a plaintiff to have the sheriff seize property of the adverse party at the outset (or at any stage) of a civil action. Its purpose is security: to ensure that, if judgment is later rendered for the plaintiff, there will be assets to satisfy it. It does not adjudicate ownership, and it is strictly construed because it is harsh in operation.

Attachment may be issued ex parte, but it remains subject to post-issuance judicial scrutiny and the defendant’s right to dissolve it by counter-bond or by showing that its grounds or requisites are lacking.

II. Legal Bases and Relationship to the Main Action

Rules of Court, Rule on Preliminary Attachment (traditionally Rule 57): governs grounds, requisites, issuance, levy, garnishment, discharge, third-party claims, and damages for wrongful attachment.
Ancillary nature: Attachment is always ancillary to a principal civil action (e.g., collection of sum of money, damages, recovery of property). The court that tries the principal case controls the attachment proceedings.
Interaction with other remedies: It may be pursued together with other provisional remedies (e.g., injunction, replevin) if justified by distinct grounds.

III. When Attachment May Issue (Typical Grounds)

Courts may grant attachment in any of the following illustrative, codified grounds (paraphrased from the Rules):

Non-resident / resident temporarily absent: The action is for money or damages and the defendant is not residing or is temporarily absent from the Philippines.
Intent to defraud creditors: The defendant has fraudulently contracted the debt/obligation or is about to abscond, conceal, remove, or dispose of property to defraud creditors.
Public or fiduciary defalcation: The action is for a specific sum or damages arising from embezzlement, fraud, or defalcation by a public officer; corporate officer; attorney; factor, broker, agent, or clerk; or any person in a fiduciary capacity.
Property unjustly/fraudulently taken, detained, or converted and concealed/removed to prevent seizure.
Departure with intent to defraud creditors.

Key idea: The plaintiff must show, through affidavits and competent evidence, specific acts indicating fraud or the qualifying circumstance—not mere conclusions.

IV. Requisites for Issuance

Verified application and supporting affidavit stating:
- A sufficient cause of action;
- That the case falls under one or more statutory grounds;
- That no other sufficient security exists for the claim; and
- The amount due, above all legal set-offs or counterclaims.
Attachment bond (plaintiff’s bond): Posted in an amount the court fixes to answer for all costs and damages the adverse party may sustain if the attachment is later found wrongful or excessive.
Judicial order of attachment: May issue ex parte upon the judge’s determination of sufficiency.
Service of summons rule: As a rule, the summons, complaint, application, and supporting papers must be served before or contemporaneously with enforcement of the writ. Exceptions exist (e.g., action in rem/quasi in rem, defendant is a non-resident or temporarily absent, or service cannot be made promptly despite diligent efforts).

V. Enforcement: Levy and Garnishment

Scope of property: Only property not exempt from execution may be attached (see exemptions below).
Levy on real and personal property: The sheriff enforces the writ by levying property described in the order or otherwise discoverable, following the hierarchy and formalities prescribed (e.g., annotation on titles, inventory and custody for personalty).
Garnishment of debts/credits: Debts, bank accounts, receivables, royalties, and credits in the hands of third persons (garnishees) may be garnished by serving the writ and notice on them. After service, the garnishee is bound not to release the credits to the defendant and may incur liability if it does.
Sheriff’s return: The enforcing officer must promptly report actions taken, including a detailed inventory and the identities of garnishees served.

Property Exempt from Attachment/Execution (illustrative)

Family home (subject to statutory limits), necessary clothing and household items, tools and implements for livelihood, professional libraries, and such other items exempted by statute and jurisprudence. Exemptions are liberally construed in favor of the judgment debtor’s basic needs.

VI. Remedies of the Adverse Party and Third Persons

Motion to discharge/dissolve the attachment:
- By counter-bond: Posting a bond equal to the amount fixed by the court (or the value of the property attached) results in discharge as a matter of right.
- For improper/insufficient grounds or defects: The court may dissolve or reduce the attachment upon showing that requisites/grounds are lacking, the affidavit is defective, or the amount is excessive (court may trim to a reasonable sum).
Third-party claims (tercería): A stranger claiming title or right to attached property may file an affidavit of claim with the sheriff and court. The sheriff need not proceed unless indemnified by the attaching party through an indemnity bond. The third person may also sue independently (accion reivindicatoria) to recover the property.
Damages for wrongful attachment: Recoverable against the plaintiff’s bond upon proper motion and proof after the case’s termination or earlier if the court so allows.

VII. Priority, Custodia Legis, and Post-Judgment Effects

Priority generally follows the timing of levy and the nature of the property. A duly effected attachment creates a lien in custodia legis that the defendant cannot defeat by subsequent transfers; it ranks against later encumbrances subject to land registration rules.
Merger with execution: If plaintiff obtains a favorable judgment, the attached assets may be applied to satisfy it; if judgment is for the defendant, the attachment is lifted and damages may be awarded for wrongful levy.

VIII. Practical Standards of Proof

Specificity over generalities: Affidavits should state particular facts evidencing the ground (e.g., concrete transfers to related parties without consideration; bookings of one-way travel; recent asset stripping).
Probable cause threshold: The court exercises discretion on whether the showing is credible and sufficient to justify the harsh, pre-adjudicative seizure of property.
Strict compliance: Defects in affidavit averments, bond sufficiency, or service may be fatal.

IX. Modes of Discovery (Philippine Civil Procedure) and How They Support Attachment

Discovery is often decisive in obtaining, defending against, or maintaining a writ of attachment. The core modes include:

Depositions upon oral examination or written interrogatories (during the action; and before action or pending appeal to perpetuate testimony).
Written interrogatories to parties.
Requests for admission of material facts or authenticity of documents.
Production or inspection of documents, electronically stored information (ESI), and tangible things; entry upon land for inspection.
Physical and mental examination of persons (when condition is in controversy).
Subpoena duces tecum / ad testificandum (to compel non-parties to appear and/or produce documents).
Court-directed discovery management and sanctions for refusal or evasion (e.g., contempt, striking pleadings, or even dismissal under the discovery rules).

Strategic use for attachment:

Pre-filing: Use depositions before action (to perpetuate testimony) where key evidence may become unavailable (e.g., impending departure of a witness who knows of fraudulent asset transfers).
Early in the case: Serve targeted interrogatories and requests for production to pin down the defendant’s asset structure, related-party transactions, receivables, and bank/broker relationships.
Requests for admission: Establish undisputed predicates (e.g., existence of a debt; dates of transfers), trimming the factual issues for the attachment hearing.
Non-party subpoenas: Reach garnishees and custodians (customers, tenants, brokers, escrow agents, registries) to confirm debts/credits owed to the defendant and to validate concealment or dissipation.

X. Evidence Gathering for Each Common Ground

Below are practical evidentiary roadmaps, keyed to typical statutory grounds:

A. Fraud in Contracting the Debt / Incurring the Obligation

Proof aimed at: Defendant’s state of mind at the time of contracting—false representations; concealment; side letters contradicting warranties.
Evidence sources:
- Emails, messages, drafts, term sheets showing misrepresentations;
- Financial statements, audit findings, bank return items;
- Testimony of deal negotiators or brokers.
Discovery tools: Requests for production (document set of negotiations), depositions of signatories, requests for admission on specific misstatements.

B. Asset Stripping / Concealment / Removal of Property

Proof aimed at: Badges of fraud—transfers to insiders for nominal consideration, rapid encumbrances, unexplained withdrawals, emptying of inventory.
Evidence sources:
- SEC submissions (GIS, AFS), share transfer ledgers, board minutes;
- Property registries (land, vehicles, IP), warehouse receipts, bill of lading;
- Customer contracts showing assignment of receivables.
Discovery tools: Subpoenas to custodians/registrars; inspection of premises/inventory; production of ledgers and bank transaction histories (subject to bank secrecy constraints—see §XI).

C. Non-Resident or Temporarily Absent Defendant

Proof aimed at: Non-residence or temporary absence plus the money/damages nature of the claim.
Evidence sources: Immigration records (travel history), employment/immigration visas abroad, returned mail, affidavits of neighbors/lessors.
Discovery tools: Requests for admission on residence; depositions of representatives; subpoena to travel agencies or carriers (where available).

D. Public/Fiduciary Defalcation

Proof aimed at: Fiduciary relationship and misappropriation.
Evidence sources: Agency agreements, trust/escrow instruments, corporate authority documents, audit trails, receipts/cancelled checks.
Discovery tools: Forensic accounting via production; depositions of accountants/treasurers; RFAs on receipt and non-remittance.

E. Property Fraudulently Taken and Concealed

Proof aimed at: Possession and subsequent concealment/removal to evade seizure.
Evidence sources: GPS logs, warehouse gate logs, CCTV clips, bills of lading, delivery receipts, inventory reconciliations.
Discovery tools: Inspections, subpoenas to logistics providers, production of tracking data and ESI.

XI. Special Topics in Evidence

1) Electronic Evidence (Rules on Electronic Evidence)

Admissibility: Electronic documents are functional equivalents of paper writings. Authentication may be through digital signatures, system integrity testimony, or circumstantial indicia (hash values, metadata, business records testimony).
Weight: Reliability turns on method of data creation, storage, and safeguards. Preserve metadata and maintain a chain of custody.

2) Bank Secrecy and Garnishment

Bank deposit confidentiality generally restricts examination and disclosure of deposits absent consent or statutory exception. However, garnishment of a specifically identified account or debt pursuant to a court writ is conceptually distinct from a fishing expedition into bank records.
Practical approach: Identify specific banks/branches and account identifiers through discovery of paystubs, check images, confirmations, or counterparties; then serve garnishment. Avoid broad demands for “all accounts” without anchors.

3) Data Privacy (Data Privacy Act)

Processing for the establishment, exercise, or defense of legal claims is generally permitted, but apply necessity and proportionality. Use litigation holds and limit access to need-to-know personnel. Provide privacy notices where feasible.

4) Corporate Separateness and Alter Ego

If assets are being parked in affiliates or alter egos, gather badges of instrumentality: undercapitalization, commingling, domination of finances/policy, use of the entity to perpetuate fraud. Use interrogatories and production requests directed at related entities; seek court leave where non-parties are involved.

5) Public and Registry Sources (Illustrative)

SEC (corporate reports and beneficial ownership disclosures), Registry of Deeds (TCT/CCT records and annotations), LTO (vehicle records), IPOPHL (IP), Marina/Ship registries, PDEA/DA for regulated goods, and LGU business permits. Use these to triangulate assets for levy.

6) Maritime and Special Regimes

In maritime claims, arrest/attachment of vessels and appurtenances follows special rules; timing and custodia legis are pivotal. Coordinate with port authorities for effectivity.

XII. Procedure: From Application to Hearing

Prepare the record: Draft a verified complaint and a verified application/affidavit for attachment; include detailed factual grounds and attach corroborating documents.
Post the bond; seek ex parte issuance (if justified by risk of dissipation).
Secure the writ; coordinate with the sheriff for immediate levy/garnishment. Provide property leads and garnishee details.
Ensure service of summons complies with the “prior/contemporaneous” rule or falls within exceptions.
Sheriff’s levy and garnishment; return filed.
Adverse party’s motion to discharge/reduce; court hears both sides, considering affidavits and documentary proof (and, when appropriate, limited oral testimony).
Ongoing discovery: Even after levy, continue discovery to fortify grounds, identify more assets, and defend against dissolution.
Trial on the merits; eventual merger with execution if plaintiff prevails.

XIII. Common Pitfalls and How to Avoid Them

Conclusory affidavits: Replace labels (“fraudulent,” “absconding”) with dates, names, and amounts.
Insufficient bond or defective certification: Ensure the bond is properly executed by a qualified surety and that all certifications (verification, forum shopping, annex marking) are compliant.
Non-observance of service rules: Anticipate and document diligent efforts if invoking exceptions.
Overbroad discovery: Use targeted requests tied to the attachment grounds; overreach invites objections and delays.
Ignoring exemptions: Screen levy targets against the exemptions catalogue to avoid needless motions and potential damages.

XIV. Sanctions, Contempt, and Cost Shifting

Discovery noncompliance may result in orders deeming matters admitted, striking pleadings, or contempt. Courts may award expenses and attorney’s fees on motions to compel where resistance lacked substantial justification.
Wrongful attachment damages may include actual, moral, exemplary damages, and attorney’s fees, recoverable against the plaintiff’s bond upon proper showing.

XV. Practical Checklists

A. Plaintiff’s Attachment Packet

Verified complaint (money/damages or other qualifying action).
Verified attachment affidavit meeting the four averments.
Documentary exhibits supporting the ground (transfers, emails, ledgers).
Proposed writ/order; plaintiff’s bond; sheriff coordination memo listing asset/garnishee leads.
Process plan showing service of summons compliance or exception.

B. Defense Playbook

Immediate audit of defects (affidavit, bond, service).
Counter-bond computation and bonding company coordination.
Motion to discharge/reduce with evidence refuting grounds (e.g., bona fide consideration, ordinary-course transactions).
Assert exemptions; file tercería for third-party claimants.
Seek protective orders to curb abusive discovery; move for sanctions if plaintiff stonewalls.

XVI. Ethical and Professional Duties

Maintain candor to the tribunal in ex parte applications; disclose material facts, including potential defenses known to counsel.
Observe proportionality in discovery; avoid oppressive tactics.
Implement litigation holds promptly to prevent spoliation; advise clients on preservation across devices and systems.

XVII. Key Takeaways

Preliminary attachment is a security device, not a shortcut to victory. It hinges on credible, specific, and timely evidence of a qualifying ground.
Discovery is the engine that surfaces those facts and maps assets for levy and garnishment—use it deliberately and lawfully.
Procedure matters: strict compliance on affidavits, bonds, service, and levy formalities determines survival on challenge.
Always weigh litigation risk: wrongful attachment can be costly; precise pleadings and proportionate discovery reduce exposure.

This article provides a comprehensive practitioner-oriented view of preliminary attachment in the Philippines and the discovery/evidence practices that make or break it. For a particular case, adapt strategy to the forum’s local practice and the specific evidentiary terrain of the dispute.