PROVISIONAL

REMEDIES
RULE 57 – PRELIMINARY ATTACHMENT
RULE 58 – PRELIMINARY INJUNCTION
JENA FERNANDEZ | JUNO GERONIMO| SITTY MACARAMBON| TRISH SALES
F2021
 RULE 57 –
PRELIMINARY ATTACHMENT
ART. 1387, NEW CIVIL CODE
All contracts by virtue of which the debtor alienates property by gratuitous title are
presumed to have been entered into in fraud of creditors, when the donor did not
reserve sufficient property to pay all debts contracted before the donation.
Alienations by onerous title are also presumed fraudulent when made by
persons against whom some judgment has been rendered in any instance or
some writ of attachment has been issued. The decision or attachment need not
refer to the property alienated, and need not have been obtained by the party seeking
the rescission.
In addition to these presumptions, the design to defraud creditors may be proved in
any other manner recognized by the law of evidence.
PRELIMINARY ATTACHMENT (RULE 57)

What is preliminary attachment?

It is the attachment:
(1) by the plaintiff or any proper party
(2) property of the adverse party
(3) as security
(4) for the satisfaction of any judgment that may be recovered in
certain cases (Sec. 1).
PRELIMINARY ATTACHMENT (RULE 57)

What is preliminary attachment?

 Its legal basis include Rule 57 of ROC and Art. 1177 of NCC;
 It is merely ancillary to the main or principal action;
 The grant of remedy is discretionary upon the court;
 Rules on the application of writ of attachment must be strictly construed
in favor of the defendant.
PRELIMINARY ATTACHMENT (RULE 57)

Purpose of preliminary attachment

“The purpose of preliminary attachment are (1) to seize the property of the
debtor in advance of final judgment and to hold it for the purpose of
satisfying the said judgment x x x; or (2) to acquire jurisdiction over the
action by actual or constructive seizure of the property in those instances
where personal and substituted service of summons cannot be effected x x x.”
[Philippine Commercial International Bank v. Alejandro]
PRELIMINARY ATTACHMENT (RULE 57)

Preliminary attachment, when party may apply

An order and writ of preliminary attachment may be applied for:
1. At the commencement of action; or
2. At any time before entry of judgment.
PRELIMINARY ATTACHMENT (RULE 57)

Preliminary attachment, when party may apply

1. At the commencement of action
 The application may be incorporated in a verified complaint;
 The application is made even before summons is served on the defendant or
summons issued by the court;
 Application at this stage will result in ex parte issuance of the writ of preliminary
attachment.
PRELIMINARY ATTACHMENT (RULE 57)

Preliminary attachment, when party may apply

2. At any time before entry of judgment.
 May be made after service of summons or at any stage of the proceedings
 May be made even after judgment but before its entry which is the last opportunity
to avail of the remedy;
 This would entail notice to the defendant.
PRELIMINARY ATTACHMENT (RULE 57)

Grounds upon which attachment may issue (Sec. 1)

1. In an action for the recovery of a specified amount of money or
damages (other than moral or exemplary)
 cause of action arises 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.
PRELIMINARY ATTACHMENT (RULE 57)

Grounds upon which attachment may issue (Sec. 1)

2. 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 wilfull violation of duty.
PRELIMINARY ATTACHMENT (RULE 57)

Grounds upon which attachment may issue (Sec. 1)

3. In an action to recover the 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 the applicant or an authorized person.
PRELIMINARY ATTACHMENT (RULE 57)

Grounds upon which attachment may issue (Sec. 1)

4. 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.
PRELIMINARY ATTACHMENT (RULE 57)

Grounds upon which attachment may issue (Sec. 1)

5. 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.
PRELIMINARY ATTACHMENT (RULE 57)

Grounds upon which attachment may issue (Sec. 1)

6. 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.
PRELIMINARY ATTACHMENT (RULE 57)

Requisites for issuance of order of attachment (Sec. 3)

1. The case must be any of those where preliminary attachment is proper
(grounds);

2. The applicant must file a motion whether ex parte or with notice of

hearing
PRELIMINARY ATTACHMENT (RULE 57)

Requisites for issuance of order of attachment (Sec. 3)

3. Affidavit of the applicant, or of some other person who personally knows
 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
PRELIMINARY ATTACHMENT (RULE 57)

Requisites for issuance of order of attachment (Sec. 4)

4. Bond
 executed to the adverse party;
 in the amount fixed by the court in its order granting the issuance of the writ;
 conditioned that the latter will pay all the costs which may be adjudged to the adverse
party and all damages which he may sustain by reason of the attachment, if the court
shall nally adjudge that the applicant was not entitled thereto.
PRELIMINARY ATTACHMENT (RULE 57)

Issuance of order of attachment (Sec. 2)

An order of attachment may be issued either:
1. Ex-parte;
2. Upon motion.
PRELIMINARY ATTACHMENT (RULE 57)
Contents of order of attachment (Sec. 2)
The affidavit shall contain the following:
1. That a sufficient cause of action exists;
2. That the case is one of those mentioned in Sec. 1;
3. That there is no other sufficient security for the claim sought to be enforced by the
action; and
4. 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 lega
PRELIMINARY ATTACHMENT (RULE 57)

Prior or contemporaneous service of summons (Sec. 5)

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.
PRELIMINARY ATTACHMENT (RULE 57)

Philippine British Assurance Co., Inc. v. IAC

Facts:
An action for collection of money was filed by Sycwin Coating and Wires, Inc.
against Varian Industrial Corporation with the RTC. During the pendency of
suit, Sycwin was able to attach several properties of Varian. Varian posted a
counterbond amounting to P1.4Mthru its surety, Philippine British Assurance
Co., Inc. hence the attached properties were released. RTC ruled in favour of
Sycwin but the same was appealed by Varian with IAC.
PRELIMINARY ATTACHMENT (RULE 57)

Philippine British Assurance Co., Inc. v. IAC

Facts:
Sycwin then filed a petition for execution pending appeal against the
properties of Varian, which IAC granted. Varian failed to deliver the
properties, hence Sycwin prayed to the Court that the surety be ordered to pay
Sycwin the value of the bond.
PRELIMINARY ATTACHMENT (RULE 57)

Philippine British Assurance Co., Inc. v. IAC

Issue:
W/N an order of execution pending appeal of a judgment may be enforced
on the bond.
PRELIMINARY ATTACHMENT (RULE 57)

Philippine British Assurance Co., Inc. v. IAC

Held and Ratio:
Yes.
Citing Rule 57, Sections 5 and 12, the Court held counterbond is intended to
secure the payment of " any judgment" that the attaching creditor may recover
in the action. Under Section 17 of same rule it provides that when "the
execution be returned unsatisfied in whole or in part" it is only then that
"payment of the judgment shall become charged on such counterbond."
PRELIMINARY ATTACHMENT (RULE 57)

International Container Terminal Services, Inc. v. CA

Facts:
Sharp, Inc. filed a complaint for prohibition with prayer for preliminary
injunction against the Secreatry of DOTC, Philippine Ports Authority, E.
Razon, Inc., and ICTSI. The Writ for PI was granted by the RTC. ICTSI filed
a counterclaim against Sharp for its "unfounded and frivolous action" alleging
injuries it suffered to be, if monetized, at P100M.
PRELIMINARY ATTACHMENT (RULE 57)

International Container Terminal Services, Inc. v. CA

Facts:
The WPI was subsequently nullified by the SC, and on this ground, the
complaint and the counterclaim were also dismissed by the RTC, upon the
instance of PPA, ICTS et.al. ICTSI filed an MR with respect to its
counterclaim and notified the surety that it was claiming damages against
Sharp, but the MR was denied. The RTC decision was upheld by the CA.
PRELIMINARY ATTACHMENT (RULE 57)

International Container Terminal Services, Inc. v. CA

Issue:
W/N ICTSI can validly claim the damages against the surety bond.
PRELIMINARY ATTACHMENT (RULE 57)

International Container Terminal Services, Inc. v. CA

Ratio:
Requirements laid down in Rule 57, Section 20 (which is applicable to PI)
dictates that due notice must be made to the adverse party at any time
before the judgment becomes final and executory. ICTSI observed the
guideline.
PRELIMINARY ATTACHMENT (RULE 57)

International Container Terminal Services, Inc. v. CA

Ratio:
However, ICTSI, thru its own effort moved to dismiss the complaint
knowing that it was the basis of its own compulsory counterclaim. For
failing xxx to keep its counterclaim alive, and instead moving to dismiss the
complaint from which the counterclaim derived its life, the petitioner cannot
validly claim damages against the surety bond.