Nature and Purpose of Preliminary Attachment
Preliminary attachment is a provisional or ancillary remedy issued upon order of the court where the main action is pending. Its primary purpose is to take the property of an adverse party into legal custody as security for the satisfaction of any judgment that may be recovered by the plaintiff or any proper party. This remedy is available at the commencement of the action or at any time thereafter before the entry of judgment. It prevents the defendant from disposing of property to prevent the satisfaction of a potential judgment. Preliminary attachment places the attached property in custodia legis and creates a specific lien effective from the date of levy until the judgment is satisfied or the attachment discharged.
Ancillary and Provisional Character
By nature, preliminary attachment is ancillary or incidental to the main action. It is not a principal action or cause of action in itself, nor is it a distinct proceeding. It is applied for not for its own sake, but to enable the attaching party to realize the relief sought in the main action. As a provisional remedy, it constitutes a temporary measure availed of during the pendency of the action to preserve and protect certain rights and interests.
Basis and Strict Construction
Preliminary attachment is a purely statutory remedy; it cannot exist without a statute granting it. The rules governing it must be strictly construed in favor of the defendant. It is considered a harsh, extraordinary, and summary remedy. Thus, it should be resorted to only when necessary and granted only on concrete and specific grounds, not merely general averments. The rules require specific situations where the remedy is proper.
Relationship with Jurisdiction
The grant of preliminary attachment involves three stages: the court issuing the order, the writ issuing, and the writ being implemented. Jurisdiction over the person of the defendant is not necessary for the first two stages. However, for the writ to be validly implemented or enforced, the court must have acquired jurisdiction over the defendant. Without jurisdiction over the defendant's person, the court lacks power to act against their property.
Preliminary attachment is also used to acquire jurisdiction over the res or the property subject of the action in cases where personal or substituted service of summons on the defendant cannot be effected. In such cases, attaching the property converts the action in personam into an action quasi in rem, where jurisdiction over the res is sufficient, although summons must still be served to satisfy due process.
Availability and Who May Avail
Preliminary attachment may be applied for at the commencement of the action or at any time before entry of judgment. The "commencement of the action" refers to the date of filing the complaint, and the remedy may be applied for even before summons is served.
The remedy may be availed of by the plaintiff or any proper party. This includes a defendant who sets up a counterclaim, cross-claim, or third-party claim.
Key Requirements for Issuance
An order of attachment is granted only upon the filing of a requisite affidavit and bond. The affidavit must be by the applicant or someone who personally knows the facts. It must appear by the affidavit that a sufficient cause of action exists, that the case is one of those where attachment is proper, that there is no sufficient security for the claim, and the amount claimed is as much as the sum for which the order is sought. The applicant must also give a bond executed to the adverse party in the amount fixed by the court. This bond is conditioned that the applicant will pay all costs and damages the adverse party may sustain if the court finally adjudges the applicant was not entitled to the attachment. The affidavit and bond must be filed with the court before the order issues.
Manner of Issuance (Ex Parte or With Notice)
An order of attachment may be issued either ex parte or upon motion with notice and hearing. The court in which the action is pending, the Court of Appeals, or the Supreme Court may issue the order. Issuance may be ex parte to prevent the adverse party from disposing of property or absconding before the writ issues, which could defeat the purpose of the remedy. While the order may issue ex parte, a motion to quash the writ cannot be granted without due notice and hearing.
Implementation Requirements
No levy on attachment pursuant to the writ shall be enforced unless preceded or contemporaneously accompanied by service upon the defendant within the Philippines of the summons, a copy of the complaint, the application for attachment, the applicant's affidavit and bond, and the order and writ of attachment. This requirement is necessary to acquire jurisdiction over the defendant's person and comply with due process. Belated service of summons does not retroactively cure a fatal defect in the enforcement of the writ.
Property Subject to Attachment
The sheriff shall attach only so much of the property in the Philippines of the party against whom the writ is issued as may be sufficient to satisfy the applicant's demand, provided it is not exempt from execution. Property subject to attachment includes real and personal property, stocks, shares, or interests therein, bank deposits, debts, and credits. Property already in custodia legis may also be attached; this is done by filing a copy of the writ with the proper court or agency and serving notice upon the custodian. Such an attachment operates as a lien and does not mean the attaching court will wrest custody.
Discharge of Attachment
After a writ has been enforced, the party whose property is attached may move for its discharge. One way to discharge attachment is by depositing cash or giving a counter-bond executed to the applicant. The counter-bond must be in an amount equal to the applicant's bond or the value of the property attached. Another ground for discharge is showing that the attachment was irregularly or improvidently issued, or that the bond is defective or insufficient, or the attachment is excessive. Discharge upon giving a counter-bond or showing improper issuance requires a motion and hearing. An ex parte discharge is considered a disservice to the administration of justice. If judgment is rendered against the attaching party, the attached property or proceeds shall be delivered to the adverse party, and the order of attachment discharged.