RULES 57 to 61 PROVISIONAL REMEDIES PRELIMINARY ATTACHMENT 1 MANGILA v.

CA (2002) FACTS: • Petitioner Anita Mangila is an exporter of sea foods and doing business under the name and style of Seafoods Products. Private respondent Loreta Guina is the President and General Manager of Air Swift International, a single registered proprietorship engaged in the freight forwarding business. • Petitioner contracted the freight forwarding services of private respondent for shipment of petitioner’s products to Guam (USA) where petitioner maintains an outlet. Petitioner agreed to pay private respondent cash on delivery. • On the first shipment, petitioner requested for seven days within which to pay private respondent. However, for the next three shipments, March 17, 24 and 31, 1988, petitioner failed to pay private respondent shipping charges amounting to P109,376.95. • Despite several demands, petitioner never paid private respondent. Thus, on June 10, 1988, private respondent filed Civil Case No. 5875 before the Regional Trial Court of Pasay City for collection of sum of money. • In the instant case, the sheriff failed to serve the summons issued by the court for the petitioner (defendant in the RTC) upon information that petitioner transferred her residence to Sto. Nino, Guagua, Pampanga and further that petitioner had left the Philippines for Guam, the Writ of Preliminary Attachment was applied for and issued on
Lynnedelacruz REMREV2 Arellano Law

” The reference plainly is to a time before summons is served on the defendant. or even before summons issues. • The CA affirmed the decision of the RTC upholding the writ attachment and declaring the petition in default.September 27. petitioner filed a Motion to Dismiss the Complaint on the ground of improper venue. the alias summons was served only on January 26. Specifically. 1989 or almost three months after the implementation of the writ of attachment. Rule 57 on preliminary attachment speaks of the grant of the remedy “at the commencement of the action or at any time thereafter. A party to a suit may. Lynnedelacruz REMREV2 Arellano Law . ISSUE: • W/N the court has jurisdiction on the person of the petitioner (defendant in RTC) upon implementation of the writ of attachment? • W/N the implementation of writ of attachment was properly issued and served? HELD: • This Court has long settled the issue of when jurisdiction over the person of the defendant should be acquired in cases where a party resorts to provisional remedies.” This phrase refers to the date of filing of the complaint which is the moment that marks “the commencement of the action. 1988 and thereafter implemented on October 28. at any time after filing the complaint. However. • On February 9. 1988. 1989. avail of the provisional remedies under the Rules of Court.

Rule 14 of the Rules of Court provides that whenever the defendant’s “whereabouts are unknown and cannot be ascertained by diligent inquiry. on the day the writ was implemented. Any order issuing from the Court will not bind the defendant. then respondent could have immediately asked the court for service of summons by publication on petitioner. Rule 14 of the Rules of Civil Procedure. by leave of court. previously or simultaneously with the implementation of the writ. second. as was shown in the records of the case. Section 14. this made petitioner a resident who is temporarily out of the country. acquired jurisdiction over the petitioner. the court must have acquired jurisdiction over the defendant for without such jurisdiction. the court issues the order granting the application.• Furthermore. service may. as private respondent also claims that petitioner was abroad at the time of the service of summons. Private respondent never showed that she effected substituted service on petitioner after her personal service failed. the summons was actually served on petitioner several months after the writ had been implemented. the writ is implemented. it is not necessary that jurisdiction over the person of the defendant be first obtained. Yet.” However. the writ of attachment issues pursuant to the order granting the writ. The trial court had the authority to issue the Writ of Attachment on September 27 since a motion for its issuance can be filed “at the commencement of the action. we have held that the grant of the provisional remedy of attachment involves three stages: first. Likewise. For the initial two stages. However. REMREV2 Arellano Law • • • • Lynnedelacruz . once the implementation of the writ commences. providing for service of summons by publication. Moreover. the court has no power and authority to act in any manner against the defendant. the trial court should have.” Thus. and third. still she had some other recourse under the Rules of Civil Procedure. This is the exact situation contemplated in Section 16. The rules provide for certain remedies in cases where personal service could not be effected on a party. if it were true that private respondent could not ascertain the whereabouts of petitioner after a diligent inquiry. be effected upon him by publication in a newspaper of general circulation x x x. if petitioner’s whereabouts could not be ascertained after the sheriff had served the summons at her given address.

SANDIGANBAYAN (2001) FACTS: • On July 30.• The preliminary writ of attachment must be served after or simultaneous with the service of summons on the defendant whether by personal service. 1987. several government officials who served under the Marcos administration. RULES 57 to 61 PROVISIONAL REMEDIES PRELIMINARY ATTACHMENT 2 CHUIDIAN v. The complaint sought the reconveyance. accounting and restitution of all forms of wealth allegedly procured illegally and stashed away by the defendants (restitution of ill-gotten wealth). substituted service or by publication as warranted by the circumstances of the case. 0027 against the Marcos spouses. Lynnedelacruz REMREV2 Arellano Law . reversion. the government filed before the Sandiganbayan Civil Case No. The subsequent service of summons does not confer a retroactive acquisition of jurisdiction over her person because the law does not allow for retroactivity of a belated service. and a number of individuals known to be cronies of the Marcoses. including Chuidian.

the Republic of the Philippines filed a motion for issuance of a writ of attachment over the L/C. Lynnedelacruz REMREV2 Arellano Law • . (2) The writ is justified under Section l(d) of the same rule as Chuidian is guilty of fraud in contracting the debt or incurring the obligation upon which the action was brought. contending that: (1) The plaintiffs affidavit appended to the motion was in form and substance fatally defective. issuance of the writ of attachment. (2) Section l(b) of Rule 57 does not apply since there was no fiduciary relationship between the plaintiff and Chuidian. or that he concealed or disposed of the property that is the subject of the action. 1993. on March 17. Rule 57 of the Rules of Court. (3) While Chuidian does not admit fraud on his part. if ever there was breach of contract. • Chuidian opposed the motion for. and (4) Chuidian is residing out of the country or one on whom summons may be served by publication. justifying issuance of the writ under Section l(b). which justifies the writ of attachment prayed for under Section 1(e) of the same rule. (3) Chuidian has removed or disposed of his property with the intent of defrauding the plaintiff as justified under Section l(c) of Rule 57.While the case was pending. such fraud must be present at the time the contract is entered into. citing as grounds therefor the following: (1) Chuidian embezzled or fraudulently misapplied the funds of ARCI acting in a fiduciary capacity. (4) Chuidian has not removed or disposed of his property in the absence of any intent to defraud plaintiff.

• The Sandiganbayan held that there was a prima facie case of fraud committed by Chuidian. Thus. Second. • On July 14. but is temporarily living outside. ordering the Sandiganbayan Sheriff to attach PNB L/C No. hence. Chuidian’s absence from the country was considered by the Sandiganbayan to be “the most potent insofar as the relief being sought is concerned. 0027. Since his absence in the past was the very foundation of the Sandiganbayan’s writ of preliminary attachment. • Accordingly. the Sandiganbayan’s “most potent ground” for the issuance of the writ of preliminary attachment no longer existed. Chuidian filed a motion to lift the attachment based on the following grounds: First. 1997. justifying the issuance of the writ of attachment. he had returned to the Philippines. 1993.(5) Chuidian’s absence from the country does not necessarily make him a non-resident. 1993. SSD005-85 as security for the satisfaction of judgment. • On August 11. the Sandiganbayan issued a Resolution ordering the issuance of a writ of attachment against L/C No. the Sandiganbayan ruled that even if Chuidian is one who ordinarily resides in the Philippines. his presence in the country warrants the immediate lifting thereof. an order of attachment was issued by the Sandiganbayan on July 19. SSD-005-85 for safekeeping pursuant to the Rules of Court as security for the satisfaction of judgment in Sandiganbayan Civil Case No. and (6) Service of summons by publication cannot be used to justify the issuance of the writ since Chuidian had already submitted to the jurisdiction of the Court by way of a motion to lift the freeze order filed through his counsel. he is still subject to the provisional remedy of attachment. or almost four (4) years after the issuance of the order of attachment. Lynnedelacruz REMREV2 Arellano Law .

his belated appearance before the Sandiganbayan is not a sufficient reason to lift the attachment. was never presented as a witness by the Republic and thus was not subject to cross-examination. Moreover. in the first place. it is nevertheless a “form of suit multiplicity over the same issues. allowing the foreign judgment as a basis for the lifting of the attachment would essentially amount to an abdication of the jurisdiction of the Sandiganbayan to hear and decide the ill gotten wealth cases lodged before it in deference to the judgment of foreign courts. alleging that Chuidian’s absence was not the only ground for the attachment and. He also alleged in his motion to lift that the preliminary attachment was. he cites as a sixth ground the fact that all these allegations of fraud and wrongdoing had already been dealt with in actions before the State and Federal Courts of California. The Republic opposed Chuidian’s motion to lift attachment.• • there was no evidence at all of initial fraud of subsequent concealment except for the affidavit submitted by the PCGG Chairman citing mere “belief and information” and “not on knowledge of the facts. And in relation thereto. the California Supreme Court ruled otherwise. Although he was accused of employing blackmail tactics to procure the settlement.” These foreign judgments constitute res judicata which warrant the dismissal of the case itself. therefore. parties and subject matter. While it cannot technically be considered as forum shopping. unwarranted because he was not “guilty of fraud in contracting the debt or incurring the obligation.” Moreover. REMREV2 Arellano Law Lynnedelacruz . the L/C was not a product of fraudulent transactions.” In fact. but was the result of a US Court-approved settlement. this statement is hearsay since the PCGG Chairman was not a witness to the litigated incidents.

The judge shall. To file a counterbond in accordance with Rule 57. instant petition for certiorari contending that the respondent Sandiganbayan committed grave abuse of discretion amounting to lack or excess of jurisdiction was filed by Chuidian. apply to the judge who granted the order. the Sandiganbayan denied Chuidian’s motion to lift attachment. after hearing Lynnedelacruz REMREV2 Arellano Law . the party whose property has been attached. Section 12. WHO IS CHUIDIAN: • Petitioner Vicente B. 12. or to the judge of the court in which the action is pending. may. Discharge of attachment upon giving counterbond. 1998. which provides: SEC.—At anytime after an order of attachment has been granted. ISSUE: • W/N the issuance of writ of attachment was proper? • What can the herein petitioner do to quash the attachment of the L/C? HELD: There are two courses of action available to the petitioner: First. for an order discharging the attachment wholly or in part on the security given.• • on November 13. Chuidian was alleged to be a dummy or nominee of Ferdinand and Imelda Marcos in several companies said to have been illegally acquired by the Marcos spouses. or the person appearing on his behalf. upon reasonable notice to the applicant.

or become. or the proceeds of any sale thereof. insufficient. upon reasonable notice to Lynnedelacruz REMREV2 Arellano Law . or before any attachment shall have been actually levied. in an amount equal to the value of the property attached as determined by the judge.—The party whose property has been attached may also. copy thereof shall forthwith be served on the attaching creditor or his lawyer. with the clerk or judge of the court where the application is made. to secure the payment of any judgment that the attaching creditor may recover in the action. Upon the discharge of an attachment in accordance with the provisions of this section the property attached. or the person appearing on his behalf. or Second. Upon the filing of such counter-bond. shall be delivered to the party making the deposit or giving the counter-bond. as provided for in Section 13 of the same Rule: SEC.order the discharge of the attachment if a cash deposit is made. 13. Should such counterbond for any reason be found to be. on behalf of the adverse party. the deposit or counter-bond aforesaid standing in place of the property so released. To quash the attachment on the ground that it was irregularly or improvidently issued. and the party furnishing the same fail to file an additional counter-bond. or a counterbond executed to the attaching creditor is filed. the attaching creditor may apply for a new order of attachment. at any time either before or after the release of the attached property. Discharge of attachment for improper or irregular issuance.

It would appear that petitioner chose the latter because the grounds he raised assail the propriety of the issuance of the writ of attachment.31 Supervening events which may or may not justify the discharge of the writ are not within the purview of this particular rule. for an order to discharge the attachment on the ground that the same was improperly or irregularly issued. the rule contemplates that the defect must be in the very issuance of the attachment writ. By his own admission. he repeatedly acknowledged that his justifications to warrant the lifting of the attachment are facts or events that came to light or took place after the writ of attachment had already been implemented. the attaching creditor may oppose the same by counter-affidavits or other evidence in addition to that on which the attachment was made. It is clear that these grounds have nothing to do with the issuance of the writ of attachment. If the motion be made on affidavits on the part of the party whose property has been attached. Much less do they attack the issuance of the writ at that time as improper or irregular. the judge shall order the discharge of the attachment if it appears that it was improperly or irregularly issued and the defect is not cured forthwith. apply to the judge who granted the order. Lynnedelacruz REMREV2 Arellano Law . the attachment may be discharged under Section 13 of Rule 57 when it is proven that the allegations of the complaint were deceptively framed. but not otherwise. or when the complaint fails to state a cause of action.the attaching creditor. or to the judge of the court in which the action is pending. After hearing. For instance. however. And yet.

In the instant case. we have held that when the writ of attachment is issued upon a ground which is at the same time the applicant’s cause of action. Apart from seeking a reconsideration of the resolution granting the application for the writ. Lynnedelacruz REMREV2 Arellano Law . For four (4) long years he kept silent and did not exercise any of the remedies available to a defendant whose property or asset has been attached. as noted by the Solicitor General in his comment. It is rather too late in the day for petitioner to question the propriety of the issuance of the writ. in accordance with Section 12 of the same rule. was not availed of by petitioner. This recourse. there is no showing that the issuance of the writ of attachment was attended by impropriety or irregularity. More-over. the only other way the writ can be lifted or dissolved is by a counterbond. this Court has time and again ruled that the merits of the action in which a writ of preliminary attachment has been issued are not triable on a motion for dissolution of the attachment. Thus. petitioner no longer questioned the writ itself. however. otherwise an applicant for the lifting of the writ could force a trial of the merits of the case on a mere motion.

10-A (LRC Psd 336366) per Transfer Certificate of Title No. 1990. Aurora de Leon sold [the] same property to spouses Enrique and Rosita Caliwag without prior notice to Luz Du. 582/T-3. • Meanwhile. The action was accompanied by a prayer for a writ of preliminary attachment duly annotated at the back of Transfer Certificate of Title No. Stronghold Insurance Corp.. De Leon sold the property to Luz Du under a ‘Conditional Deed of Sale. Luz Du initiated Civil Case No. x x x commenced Civil Case No. on April 28. 1990. 2200 on August 7. Sometime in January 1989. 1989. 2200 Lynnedelacruz REMREV2 Arellano Law . 90-1848 against spouses Rosita and Enrique Caliwag. for allegedly defrauding Stronghold and misappropriating the company’s fund by falsifying and simulating purchases of documentary stamps. 60319 against Aurora de Leon and the spouses Caliwag for the annulment of the sale by De Leon in favor of the Caliwags. • Then again. 1991.RULES 57 to 61 PROVISIONAL REMEDIES PRELIMINARY ATTACHMENT 3 DU v. STRONGHOLD FACTS: • Aurora Olarte de Leon was the registered owner of Lot No.. Luz Du caused the annotation of a Notice Of Lis Pendens at the back of Transfer Certificate of Title No. Inc. • On January 3. anchored on the earlier mentioned Deed of Conditional Sale. et al. • on December 21.

• • • • On February 11. 1992. among others. the decision was handed down in Civil Case No. 90-1848 in favor of Stronghold.681. 60319 she filed against spouses Enrique and Rosita Caliwag. 6444 in the name of Stronghold with damages claiming priority rights over the property by virtue of her Notice Of Lis Pendens under Entry No. When the decision became final and executory. despite her said notice of lis pendens annotated. 1991. 1991. 2200 and the attached property was sold in a public auction. Stronghold still proceeded with the execution of the decision in Civil Case No. According to Luz Du. on March 12. 60319 and which became final and executory sometime in 1993. The trial court ruled that Stronghold had superior rights over the property because of the prior registration of the latter’s notice of levy on attachment on REMREV2 Arellano Law Lynnedelacruz . 90-1848 against the subject lot and ultimately the issuance of Transfer Certificate of Title No.60. 2200 and in lieu thereof. ordering the spouses Caliwag jointly and severally to pay the plaintiff P8. 64645) to cancel Transfer Certificate of Title No. and the final and executory decision in Civil Case No.691. the certificate of sale and the final Deed of Sale in favor of Stronghold were inscribed and annotated leading to the cancellation of Transfer Certificate of Title No. Transfer Certificate of Title No. 6444 was issued in the name of Stronghold. 13305 and inscribed on January 3. 1991. 1991. 6444 in its (Stronghold’s) name. Luz Du too was able to secure a favorable judgment in Civil Case No. as well. Luz Du commenced the present case (docketed as Civil Case No. a notice of levy on execution was annotated on Transfer Certificate of Title No. On [August] 5. on August 5.

• Capistrano Ruling Correctly Applied.Transfer Certificate of Title (TCT) No. is registered before the sale is registered.2200. The preference created by the levy on attachment is not diminished even by the subsequent registration of the prior sale. though posterior to the sale. the preference created by the levy would be meaningless and illusory. the validity of the execution sale should be maintained. because it retroacts to the date of the levy. the registration of Stronghold’s attachment was the operative act that gave validity to the transfer and created a lien upon the land in favor of respondent. otherwise. “The rule is not altered by the fact that at the time of the execution sale the Philippine National Bank had information that the land levied upon had already been deeded by the judgment debtor REMREV2 Arellano Law • Lynnedelacruz . “x x x the rule now followed is that if the attachment or levy of execution. The CA sustain the decision of the trial court. ISSUE: • W/N a Notice of Levy on Attachment on the property is a superior lien over that of the unregistered right of a buyer of a property in possession pursuant to a Deed of Conditional Sale? HELD: • The doctrine is well-settled that a levy on execution duly registered takes preference over a prior unregistered sale. • As the property in this case was covered by the torrens system. it takes precedence over the latter. and that even if the prior sale is subsequently registered before the sale in execution but after the levy was duly made.

75. WENCESLAO was bound to pay respondent a twenty percent (20%) downpayment. READYCON TRADING (2004) FACTS: • WENCESLAO had a contract with the Public Estates Authority (PEA) for the improvement of the main expressway in the R-1 Toll Project along the Coastal Road in Parañaque City. the auction sale retroacts to the date of the levy. deliver. the purchase made by the bank at said auction should enjoy the same legal priority that the levy had over the sale in favor of plaintiff. make the needed corrections on a prepared base at the jobsite. upon delivery of the materials contracted for.647. 1991. Lynnedelacruz REMREV2 Arellano Law . In other words. was to be paid within fifteen (15) days thereof. amounting to P942. roll the asphalt. The auction sale being a necessary sequel to the levy. the preference enjoyed by the levy of execution in a case like the present would be meaningless and illusory. The balance of the contract price. It was further stipulated by the parties that respondent was to furnish. for this was effected precisely to carry out the sale. • Under the contract.and his wife to Capistrano. Were the rule otherwise. lay.661. or P235. WENCESLAO entered into a contract with READYCON on April 16. and if necessary.” RULES 57 to 61 PROVISIONAL REMEDIES PRELIMINARY ATTACHMENT 4 DM WENCESLAO v. To fulfill its obligations to the PEA.

Wenceslao and/or Dominador Dayrit. WENCESLAO moved for the release of the attached equipments and posted its counter-bond. WENCESLAO. that malice and bad faith in obtaining a writ of attachment must be proved before a claim for damages on account of wrongful attachment will prosper. On September 16. on July 19. READYCON demanded that WENCESLAO pay the balance of the contract price. CA held contrary to WENCESLAO’s assertion. the contract failed to reflect the true intention of the parties.150.000. affirmed in toto the decision of the RTC. Again. its application for the writ of preliminary attachment was granted. REMREV2 Arellano Law Lynnedelacruz .• • • • • • • • Fifteen (15) days after performance of said work. however. On May 30. RTC ruled in favor of the respondent holding petitioner liable. READYCON filed a complaint with the Regional Trial Court of Pasig City for collection of a sum of money and damages. 1991. WENCESLAO also alleged that since the contract did not indicate this condition with respect to the period within which the balance must be paid. with prayer for writ of preliminary attachment against D. It did not even bother to reply to the demand letter.M. ignored said demand. the counsel for READYCON wrote a demand letter to WENCESLAO asking that it make good on the balance it owed. on appeal. As READYCON timely posted the required bond of P1. Respondent alleged that their contract was not merely one of sale but also of service. that respondent shall lay the asphalt in accordance with the specifications and standards imposed by and acceptable to the government. 1991. 1991. The CA. namely. WENCESLAO failed to heed the demand.

petition before the SC.. where we ruled that: Whether the attachment was discharged by either of the two (2) ways indicated in the law. i. ISSUE: • W/N respondent READYCON is liable to petitioner WENCESLAO for damages caused by the issuance and enforcement of the writ of preliminary attachment? HELD: • • It is to be stressed that the posting of a counter-bond is not tantamount to a waiver of the right to damages arising from a wrongful attachment. e. which in most instances like in the REMREV2 Arellano Law Lynnedelacruz .• Hence. the liability of the surety on the attachment bond subsists because the final reckoning is when “the Court shall finally adjudge that the attaching creditor was not entitled” to the issuance of the attachment writ in the first place. the filing of a counterbond is a speedier way of discharging the attachment writ maliciously sought out by the attaching party creditor instead of the other way. Intermediate Appellate Court.g. by filing a counterbond or by showing that the order of attachment was improperly or irregularly issued. This we have made clear in previous cases. The attachment debtor cannot be deemed to have waived any defect in the issuance of the attachment writ by simply availing himself of one way of discharging the attachment writ. Calderon v.. instead of the other. Moreover.e.

this Court ruled on that issue without a pronouncement that procurement of the writ was attended by bad faith. In Philippine Commercial & Industrial REMREV2 Arellano Law • Lynnedelacruz . The mere existence of malice and bad faith would not per se warrant the award of actual or compensatory damages—to grant such damages. We affirm the finding of the respondent appellate court that malice and bad faith attended the application by PCIB of a writ of attachment. Proof of bad faith or malice in obtaining a writ of attachment need be proved only in the claim for damages on account of the issuance of the writ. for pertinently what this Court stated was as follows: The silence of the decision in G. we laid no hard and fast rule that bad faith or malice must be proved to recover any form of damages. Hence. stressed that bad faith or malice must first be proven as a condition sine qua non to the award of damages. citing Philippine Commercial & Industrial Bank. would require presentation of evidence in a fullblown trial on the merits and cannot easily be settled in a pending incident of the case. The appellate court appears to have misread our ruling. We note that the appellate court.present case. No. 55381 on whether there was bad faith or malice on the part of the petitioner in securing the writ of attachment does not mean the absence thereof. Plainly. • The Supreme Court has not laid a hard and fast rule that bad faith or malice must be proved to recover any form of damages. 196 SCRA 29 (1991).R. sufficient proof thereon is required. Only the legality of the issuance of the writ of attachment was brought in issue in that case.

For the mere existence of malice and bad faith would not per se warrant the award of actual or compensatory damages. To grant such damages. thereby warranting the award of moral and exemplary damages. sufficient proof thereon is required. Lynnedelacruz REMREV2 Arellano Law . But we denied the award of actual damages for want of evidence to show said damages.Bank. we found bad faith and malice to be present.

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