Professional Documents
Culture Documents
A. Attachment defined.
Attachment is a juridical institution which has for its purpose to secure the
outcome of the trial, that is the satisfaction of the pecuniary obligation contracted by a
person or believed to be contracted by hin; by virtue of which at the commencement of
the action or at any time before entry of judgement, a plaintiff or any proper party may
have the property of the adverse party attached as security for the satisfaction of any
judgement that may be recovered. ( De Guzman v. Catolico 65 Phil 260)
B. Purpose of attachment.
1. To Seize the property of the debtor in advance of final judgement and to hold it
for purposes of satisfying the said judgement or;
2. To enable the court to acquire jurisdiction over the action by the actual or
constructive seizure of the property in those instances where personal services of
summons on the creditor cannot be effected. (Mabanag v. Galemore)
1.To secure a contingent lien on defendant's property until plaintiff can, through
appropriate proceedings , obtain a judgement and have such property applied to its
satisfaction; Or
2. To make some provision for unsecured debts in cases where the means of satisfaction
thereof are liable to be removed beyond the jurisdiction or improperly disposed of or
concealed or otherwise placed beyond the reach of creditors. (Spouses Salgado V. CA, GR
No. L-55381)
Levy of attachment is the service upon the defendant a copy of plaintiff's affidavit
and bond and of the order of attachment. ( Reinsurance Company of the Orient Inc. Vs.
Barcelona . R-32027)
A proceeding in attachment is in rem where the defendant does not appear and in
personam where he appears in action. (Banco Espanol v. Palanca, 37 Phil 921)
FIRST STAGE: The court issues the order granting the application.
SECOND STAGE: The writ of attachment is issued pursuant to the order granting
the writ.
4. In an action against a party who has been guilty of fraud in contracting the
debt or incurring the obligation upon which the action is brought or in performance
thereof
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.
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.
1. Ex-Parte
2. Upon Motion with notice and hearing by the court in which the action is
pending, or by the Court of appeals or of the Supreme Court.
1. Affidavit of the Applicant , or of some other persons who personally knows the
facts , that a sufficient cause of action exists,
2. Bond
That the applicant will pay all the costs which may be adjudged to the adverse
party and all the damages which he may sustain by reason of the attachment, if the court
shall finally adjudge that the applicant was not entitled thereto.
P. Attachment of Credits.
All persons having in their possession or under their control any credits or other
similar personal property belonging to the party against who attachment is issued shall
be liable to the applicant for the amount of such credits, other similar personal property
until the attachment is discharged , or any judgement recovered by him is satisfied ,
unless such property is delivered or transferred to the clerk , sheriff or other proper
officer of the court issuing the attachment. (National Bank v. Olutanga lumber company,
54 Phil 546)
Q. Terceria
Terceria is a remedy by third party claimant. It is done by executing an affidavit
of his title or right of possession over the property seized and serving the same upon the
officer making the levy and the judgement creditor.
D. Special Reminders
Although a writ of preliminary attachment may be issued ex- parte or even before
service of summons on the defendant, it cannot however be implemented until
the court has acquired jurisdiction over the person of the defendant.
If a property has been levied upon by virtue of a writ preliminary attachment,
it becomes one under custodia legis and a subsequent extra-judicial foreclosure
of said property by a third party mortgage does not affect the lien created by the
attachment. (Consolidated Bank and Trust Corporation v. Intermediate Appellate
Court)
A foreign corporation duly licensed to do business in the Philippines is not a non
resident, hence its property here may not be attached on the mere ground that
it is a non resident. ( Claude Neon lights Inc. V. Philippine Advertising Corp. 57
Phil 607)
Insolvency of the defendant debtor is not a ground for the issuance of a writ of
preliminary attachment. ( Aboitiz and Co. v. Provincial Sheriff L-35990)
Properties exempt from execution are also exempt from attachment.
After execution is unsatisfied against the judgement debtor, the judgement
creditor may bring an action against a garnishee upon whom notice was
served under an attachment issued in the action before judgement. Notice for
appearance of the garnishee and requiring him to answer is not necessary before
bringing the action. (Tee Bi and Co. v. Chartered bank of Indiam 41 Phil 819).