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PROVISIONAL REMEDIES

or disposed of his property, or is about to do so,


Preliminary Attachment with intent to defraud his creditors; or
(f) In an action against a party who does not
reside and is not found in the Philippines, or on
What is preliminary attachment? whom summons may be served by publication
When an action is pending to be levied upon the
property or properties of the defendant therein, Section 2. Issuance and contents of order. An order
the same to be held thereafter by the Sheriff as of attachment may be issued either ex parte or upon
security for the satisfaction of whatever motion with notice and hearing by the court in which the
judgment might be secured in said action by the action is pending, or by the Court of Appeals or the
attaching creditor against the defendant Supreme Court, and must require the sheriff of the court
What is its purpose? to attach so much of the property in the Philippines of
To secure a contingent lien on defendants the party against whom it is issued, not exempt from
property until plaintiff can, by appropriate execution, as may be sufficient to satisfy the applicant's
proceedings, obtain a judgment and have such demand, unless such party makes deposit or gives a
property applied to its satisfaction bond as hereinafter provided in an amount equal to that
TN: fixed in the order, which may be the amount sufficient to
Plaintiff must establish that satisfy the applicant's demand or the value of the
1. obligation had not been secured originally property to be attached as stated by the applicant,
2. that if secured at its beginning, the security exclusive of costs. Several writs may be issued at the
later becomes valueless same time to the sheriffs of the courts of different
judicial regions.
If the court issues writ of attachment without grounds,
such may be quashed by certiorari. THREE STAGES IN THE ISSUANCE OF WRIT

Grounds: Not necessary that jurisdiction over the person of the


defendant should first be obtained
Section 1. Grounds upon which attachment may issue. 1. court issues the order granting the
At the commencement of the action or at any time application
before entry of judgment, a plaintiff or any proper party 2. writ of attachment issues pursuant to the
may have the property of the adverse party attached as order granting the writ
security for the satisfaction of any judgment that may be It is required that court has acquired jurisdiction over
recovered in the following cases: the defendant
(a) In an action for the recovery of a specified 3. writ is implemented
amount of money or damages, other than moral
and exemplary, on a cause of action arising from However: should the court decide to hold a hearing
law, contract, quasi-contract, delict or quasi- with notice to the adverse party, summons should first
delict against a party who is about to depart from be served.
the Philippines with intent to defraud his
creditors; Section 3. Affidavit and bond required. An order of
(b) In an action for money or property embezzled attachment shall be granted only when it appears by the
or fraudulently misapplied or converted to his affidavit of the applicant, or of some other person who
own use by a public officer, or an officer of a personally knows the facts, that a sufficient cause of
corporation, or an attorney, factor, broker, agent, action exists, that the case is one of those mentioned in
or clerk, in the course of his employment as such, section 1 hereof, that there is no other sufficient security
or by any other person in a fiduciary capacity, or for the claim sought to be enforced by the action, and
for a willful violation of duty; that the amount due to the applicant, or the value of the
(c) In an action to recover the possession of property the possession of which he is entitled to
property unjustly or fraudulently taken, detained recover, is as much as the sum for which the order is
or converted, when the property, or any part granted above all legal counterclaims. The affidavit, and
thereof, has been concealed, removed, or the bond required by the next succeeding section, must
disposed of to prevent its being found or taken by be duly filed with the court before the order issues.
the applicant or an authorized person;
(d) In an action against a party who has been
guilty of a fraud in contracting the debt or For the issuance of writ of preliminary
incurring the obligation upon which the action is attachment, there must be an affidavit and bond
brought, or in the performance thereof;
(e) In an action against a party who has removed
The AFFIDAVIT must establish that:

a. sufficient cause of action exists


b. case is one of the grounds in Sec.1
c. no sufficient security for the claim sought to be
enforced
d. amount due to the applicant is as much as the
sum for which the order is granted