Civ Pro Rec May 1 2019;
copy of the application for attachment;
ASG: So what you can do there, lalo na at the end you can see that
you are going to win but you end up vastly deteriorated damaged
property, you can ask the Court to appoint a receiver to manage the
property while the issue of ownership is still has not been settled.
The Receiver comes in the picture for him to be able to protect or
preserve that property which is the subject of the writ or about
support.
Support naman, self-explanatory yan, it provides suppport pendent
lite because in many instances the person entitled to support, in the
first place that is why they file a petition for support, they have no
means to take care of themselves, there is no mechanism in the
proceeding for the grant of support pendente lite. Whoever is
entitled to support will surrender in the end, kasi wala nobody can
provide for him so that he can maintain the suit for support.
That is why immediately, by the way, one characteristics of a
provisional remedy is that you can resort to it, even before the
responsive pleading has been filed, in otherwords, the plaintiff
usually apply for it at the start of the litigation, it goes along with
the complaint. That is a case for attachment, injunction, support and
replevin, the prayer for support pendent-lite is already included in
the complaint or support.
So, immediately the Court will, in some instances they have
summons serve and at the same time they have a hearing issued
on the grant of provisional remedies. But in some instances where
a hearing do not need to have a notice or hearing prior to issuing a
writ of attachment, they can grant the attachment even without
summons being serve upon the defendant.
In fact, if you have read the provisions on attachments in the ROC
(rule 57), you will observe that if a writ of preliminary attachment
is issued, that’s usually because the applicant is willing to post a
bond to answer for the damage that will result just in case the
attachment is wrongful in nature or illegal, when that summons is
served upon the defendant, hindi lang summons ang hahawakan ni
Sheriff, pati yung;
1. copy of the complaint;
2.
3. copy of the order granting the attachment;
4. the writ;
5. the copy of the bond;
***All of those will be contemporaneously serve upon the
defendant, so that you may be given an opportunity to seek the
discharge of the attachment if he believes that it has been
wrongfully issued. –That is the characteristics of this provisional
remedy.
ASG: Replevin – (define) - is an action to recover personal property
that was wrongfully taken or detained.
What is involve is the possession of the personal property, replevin
usually involves cars that were sold thru installment, because little
do they know people who buy cars installment, if they default in
installment payments, the entire obligation will be due and
demandable. Since you are not able to pay the balance which is now
due and demandable, you can be dispossessed on that car. The
Sheriff will go to your place and will serve the writ and get the car.
ASG: Why is it a provisional remedy?
-it is an action to cause the transfer of possession of a personal
property, the writ of replevin is applied for in the start of the
proceeding, and again it is one of those, this is one of the cases in
a writ of replevin purely by the documents submitted by the
applicant.
In other words, you do not have to wait until the defendant files an
answer, so the Court as long as they can go over the documents
and they are complete and more importantly, there is a bond there
and there that is a value of the car, then the Court without setting
the case for hearing can issue a writ of replevin in favor of
mortgagee. So the Sheriff is duty bound to go look for the mortgagor
and cause the dispossession of that personal property.
ATTACHMENT:
ASG: In the case of injunction, receivership, support and replevin,
these can be a main actions in themselves. i.e. Petition for injunction
with prayer for the issuance of restraining order.
ASG: But does not to say, in all cases where you are asking for a
preliminary injunction, the main cause of action is injunction, hindi.
Because we have gone through enough under the ROC to be able to
observe that there are instances where you can file for certiorari,
but since the filing for the petition does not toll or stay the running
of the appeal period, so much so if you do not get an injunction mag
fifinal na yan, the assailed order, what is your remedy there.
You will have your rule 65 petition, accompanied by a prayer for
issuance of TRO or Preliminary Injunction, so that the subject matter
of the petition itself will not become moot and academic. Because if
you know, all the adverse party needs to do is sit pretty there and
wait until mag final yung period so that he can already enforce the
judgment or the order in his favor kasi wala kang nakuhang
injunctive relief in the higher court.
You do not ask an injunctive writ in an appeal, because the filing of
an appeal will stay the running of the period, you don’t have to be
worried that the unfavorable decision rendered against you will
become final. You don’t need to pray for injunctive relief there, it is
only in instances where you file Rule 65 petition because there is no
other plain and adequate remedy in the ordinary course of law that
you will have to seek injunctive relief.
But as far as injunction is concern, you can use that alot of cases,
basta the important thing to remember there is you to meet the
requirement for the Court to grant an injunctive relief.
ATTACHMENT:
ASG: An attachment is sought usually to satisfy a judgment, so you
have to think what kind of cases have to be filed in order for you to
be able to seek or apply for the preliminary attachment. Those case,
with respect to attachment you don’t have to spend a lot of time
worrying ano ba yang mga kaso na yan, because Sec. 1 Rule 57
enumerates those cases for you.
That is why, this early ASG tells us, to memorize all the
examples provided in Sec. 1 Rule 57 because it is exclusive
list.
(a) In an action for the recovery of a specified amount of
money or damages, other than moral and exemplary, on a
cause of action arising from law, contract, quasi-contract,
delict or quasi-delict against a party who is about to depart
from the Philippines which intent to defraud his creditors;
ASG: This can be so many types of cases, basta importante is it is
for collection of sum of money, but what is the kicker here or the
phrase on make the Court decide W/N to grant the attachment in
this case?
-The important thing is when you apply, the first thing that you have
to remember here in Sec. 1 is from the start;
At the commencement of the action or at any time
before entry of judgment, a plaintiff or any proper party may
have the property of the adverse party attached as security
for the satisfaction of any judgment that may be recovered
in the following cases:
ASG: So we are talking about collection of sum of money here, as
I’ve said madameng collection of money from other Courts, what is
going to differentiate from this particular case to the other collection
of sum of money cases, is in this instance, you are supposed to be
able to show, not prove, SHOW, that the debtor in this case is
intending to depart from the Philippines intending to defraud the
Creditors. The important thing here is you should be able to show
the intention to depart, that doesn’t mean that you have to show a
copy of the ticket, all you have to do is allege the performance of
certain acts who give the Court, allow the Court to arrive the
conclusion that if he does not issue a writ of preliminary attachment
in your favor, you have difficulty satisfying the judgment because
the defendant will be departing from the Phils. at wala nang
makukuhang property ditto dahel siguro nabenta na nya lahat.
In fact, the as Mr. M said earlier, you are collecting money from him,
already selling his property, that means that there is an intent to
disappear and defraud his creditors, that is sufficient enough to
show that to Court.
 That is why ASG made it a point to qualify that you do not need to
prove you only need show, why? Because there is no need for you
to present evidence to prove the intention, in the first place how can
you prove the intention that is state of mind, and mangyayare is all
you have to do is an application of a writ of preliminary attachment
which ASG said should be part of your main complaint. i.e. Collection
of sum of money, you will provide for certain circumstances there
that will indicate to the Court that the defendant is truly intent to
leave the Country in order to defraud his creditor.
ASG: Next;
(b) 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 other person in a fiduciary
capacity, or for a willful violation of duty;
ASG: The action here is for what?
-misappropriation or embezzlement of property, this is actually
estafa, result in a criminal case. If you want to jail that person,
collection for sum of money or recovery of possession of property if
it is a civil case.
But what makes it the type of action where you need to apply for a
provisional remedy of preliminary injunction?
-There is a violation of a duty, a kind of duty wherein…
Who are the defendants in this case?
-Public officer, officer of a corporation, or an attorney, factor, broker
agent, or clerk, in the course of his employment as such, or by other
person in a fiduciary capacity.
What should they have supposed to have done in this case, which
allow the Court for a writ of preliminary injunction in favor of the
plaintiff?
-Yes it is the act, but what is the similarity between all these, these
are not random people, public officer, officer of a corporation,
attorney,.. in the course of employment.
-here, there is abuse of confidence, there is a willful violation of
duty. The person involve here has to have a fiduciary duty to the
plaintiff.
ASG: What does fiduciary duty mean?
-That there is trust in confidence, i.e. that you possess the property
in behalf of somebody, so you have a fiduciary duty to maintain that
property in good condition, pero see to it that you follow all the
instruction of the person actually owns that property that is your
fiduciary duty to that person.
But you have violated that duty by your embezzlement or
fraudulently misapplying or converting that personal use that which
has given to you in fiduciary capacity.
And that is why, it is because of this particular circumstance, the
violation of that fiduciary duty, that the Court is going to entertain
your application of a writ of attachment. Otherwise, if it is just an
ordinary collection of sum of money or ordinary possession of
property, kung sino sino lang yan, walang relationship walang
fiduciary relationship between the 2 parties, then there will be no
prayer for an issuance of a writ of preliminary attachment. In cases
like that the Court will just proceed to hear the collection of sum of
money case or recovery of possession.
It will not start the case by entertaining the application for a writ of
preliminary attachment which is what is going to happen if this case
is one when there is embezzlement or conversion of a property in
violation of fiduciary duty.
ASG: Next
(c) 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;
ASG: What is the situation here which will compel the Court to issue
a Writ of Preliminary Attachment.
-There is a taking of property against the defendant, who can lead
to hide or conceal such property.
ASG: MEMORIZE;
- concealed, removed, or disposed of to prevent its being found.
So again, we are talking of some sort of fraud, kasi tinatago nya ang
property na hindi sayo e, pinapalabas mon a property mo yan, that
is the situation here.
So once again, and imagine it, the complaint will be one for recovery
of possession of property but then there will be a prayer for
preliminary attachment, the intention of the defendant to conceal or
remove or dispose of the property so that it cannot be bound to that.
ASG: Next;
(d) 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;
ASG: This is a VERY IMPORTANT provision, why? Because this
provision evolve. Noon in the old ROC, the only basis for the
issuance of a preliminary attachment then was in an action against
the party that was guilty of fraud in contracting the debt.
Walang in the performance of the obligation, so as long as when you
contracted the debt, you are sincere, in good faith, wala kang
planong lokohen yung kausap mo, but in the course of you
performing the obligation. i.e. you have to pay the installment, hindi
ka nakabayad ng installment dahil wala, you were not good in
business, you incurred losses and not able to pay the obligation due
to the other person. That was not considered a reason for the
issuance for a writ of preliminary attachment because the Courts
then will say, “ nung kinontrata mo naman e you were acting in good
faith, so ok lang.
Ok lang lalo na when the debt is such a long period of time and the
amount that is already due to the plaintiff is already a staggeringly
huge amount, hindi ka paren maissuehan ng writ of preliminary
attachment (parang mali nay an).
So when revised ROC in 1997, they changed this provision so that
it would reflect what really goes on in contractual arrangement.
Meaning that, even if there is a possibility that at the time you
entered in the contract, yung plano talaga ni B is lolokohen ka, that’s
the problem.
When you file a collection of sum of money you can point out in your
application for writ of preliminary attachment, you can show that
even during the time that you are negotiating for the contract
between him, talagang he was trying to take advantage of you or
the way he is negotiating or he was he was in the beginning acted
in good faith, ok naman usapan ninyo hindi mahirap makipag
negotiate, but at the end hindi nya agad binayaran utang nya, then
that is already a ground for a preliminary attachment.
Because, obviously there is no more good faith not in the
contracting of the debt but in the performance of the obligation, kasi
yan nga walang problema yung negotiations. Pirmahan ng kontrata
right away pero after that never syang nagbayad not even once.
ASG: That is the remedy in situations like that, a preliminary
attachment in order to assure yourself that at the end of that case,
kasi may pupuntahan pa ba yang kaso na yan? Sigurado naman
hindi ah, because nga what the situation is being emphasized is;
1. Where the defendant is violated the fiduciary relationship;
2. Embezzling money from you;
3. Fraudulently misapplied money that is due to you;
4. Concealing, disposing of property that belongs to you.
ASG: So kahet mabagal si Judge, ikaw pa ren mananalo jan, it is
not rocket science, you will win the case, but because of the delay,
if you do not get an attachment you will have nothing to control to
satisfy the judgment.
35:00
ASG: Why do I say that?
- because ang nangyayare is when you get a writ of preliminary
attachment, at the end, pag wala na syang property na maexecute,
you can execute the property that is attached. And that is why if you
will look at RULE 57, a lot of provision there are provisions that you
will find in RULE 39 (execution). Because that is the objective of
attachment, after so many years of litigation, hindi ka paren dehado
kasi you have a security that has been attached and can be a subject
of writ of execution in the end.
ASG: Go back to (e);
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;
-yung situation naman dito is, ikaw yung creditor dito ng debtor, but
not pay his obligation and he is disposing of his properties. So again
kung if you don’t get an attachment, kahet na mananalo ka, wala
kang makukuha if he do not have properties that is subject to writ
of attachment.
And finally, and most importantly;
(f) 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.
-this is a different animal, the reason for the attachment for last
paragraph is not for the purpose of satisfying the judgment, but for
the purpose of acquiring jurisdiction over the defendant. Because as
you know, from the time we took summons, hindi mon a mahanap
yung defendant. Either non-resident or out of this country, so how
will you acquire jurisdiction for him?
- If he has property in the Phils.? – attach the property.
How will you do that? – again, you have to start with the main
action, what is the main action? – whatever it is you have against
this guy, either recovery of property or collection of sum of money.
You file that complaint with the prayer for attachment, but the
prayer for attachment there, apart from, it might be a property that
can be used to satisfy the judgment, but it can also be used for the
purpose of allowing you to allow jurisdiction, not over the defendant
but over the res.
Because when you get a writ of preliminary attachment over the
property, you convert that into one which is in rem or quasi in rem
(?), and then you need not serve summons to the defendant.
Then as you all know, ang mangyayare is, even if you have
jurisdiction over the res, you will still have to send a copy of the
complaint and the summons on the last known address of the
defendant in the Philippines. But that is not the purpose of acquiring
jurisdiction over him, but for the purposes of compliance of due
process.
Since everybody has an idea of what kind of cases on what to file
when you are intent of claiming a writ of preliminary attachment,
what are the requirements? It is enough that you have a complaint
and then your complaint includes an application with a prayer for
preliminary attachment, is that enough?
ASG: Aside from the bond, so there is supposed to be a bond? How
much?
-it is the Court who will fix the bond.
So pano yan? E what if nagmamadali talaga ako makakuha ng WPA,
how is the Court going to proceed?
More than the bond, it is important (than to have a bond) to have
an affidavit. Why?
-lets go back to what you have to show the Court, you have to be
able to say in the sworn affidavit, what that guy is doing that he
intends to leave the country, and you should have a personal
knowledge or affidavit of someone who have a personal knowledge
to show that, he is intending to dispose of her property and/or
intending to conceal his property etc. Lahat yan, you have to be able
to show that is existing to the Court and it is not haka-haka or gawa-
gawa.
You have to swear to it, and that is why you have to have an
affidavit. And in your affidavit, apart from showing that a sufficient
cause of action as mentioned in section 1, you have to state that
there is (1) no other sufficient security for the claim sought to
enforce by the action, and (2) the amount due to the applicant or
the value of the property, possession of which is entitled to recover
is as much as the sum for which the order is granted above all legal
counterclaims.
What does these all means?
- first of all, your affidavit should state that, but what does that
mean?
-It means you have to say, this is what he is doing, he is disposing
his properties, if wala na akong mahanap na iba, he is no other
properties in the Phils. and he does not anything that can be subject
of execution.
Ofcourse, you should state that under oath, because there have
been instances, that the court issue a preliminary attachment and
the defendant will file an answer and say; “why do you attach my
property, samantalang when you ask the bank I have billions of
property, are you trying to embarrass me?”
That’s an instances where both (D) and court magagalet sayo, kasi
you sworn under oath that the person is disposing his property and
the person has no other property to satisfy the judgment.
ASG: How do you go about getting a writ of preliminary attachment
when you file a complaint?
-Generally, as ASG said, you apply for WPA at the commencement
of the action.
Why?
-Because you can bet, when you file a case, pag nagdemanda ka
para sa utang, the response of the defendant, of he cant pay you
her will hide or dispose the property. Kaya nga ang nangyayare ditto
is you have to move fast and that is why usually, when you seek a
WPA, you can either have a separate affidavit, which as ASG told
that you have to explain the circumstances about in Sec. 1, you are
suppose to state that they are present.
You can do that in a separate affidavit or incorporate that in the
complaint, but generally separate para di maguluhan si Judge. And
para, kasi, in some instances the Court will hear WPA ex-parte but
they will already direct that summons has been served to the
defendant. But if summons has been served to the defendant edi
malalaman nya, what the (PL) will do is to make sure that the copy
of the complaint that has been served to the (D), does not include
that documents regarding in the preliminary attachment.
AS: When an application for issuance of WPA is incorporated in the
complaint, the court is not mandated to hear that application. In
fact, when you look Rule 57, there is nothing there that the court
should hear it, unlike when you file TRO kailangan may hearing. In
fact, judges who issued TRO without a hearing derecho sanction
agad yan, but when it comes to WPA there is no requirement for
hearing.
Because there is no requirement of a hearing, there is no
requirement of a hearing whether with the defendant or without the
defendant, but having said that does doesn’t mean that some courts
dispense with a hearing all together. There are some courts that will
hear the application for a writ, but ex-parte, meaning they would
call the plaintiff and his counsel to court and maybe there is some
matters in their affidavit that needs to clarify, then the court can ask
question of them in the Court.
What are the questions that the Court can ask?
-are you sure that there are no other security so that we cannot
issue a WPA here?
But, here is the important thing, even if that hearing should takes
place, meaning with the plaintiff alone, there is no requirement that
the defendant needs to be notified. Neither that the hearing will be
considered void because of the fact that the Court does not acquire
jurisdiction of the defendant. Because we are not yet talking about
the allegations in the verified complaint, they are merely talking
about application for issuance of WPA.
And therefore, there, when you look at Rule 57, there is nothing
there that says that cannot be done ex-parte.
Having said that, there are some Courts that will not even hear the
application, they will just look that the application is complete.
Meaning; (1) verified application is there; (2) a separate affidavit
which contains the allegations mentioned in (sec. 2 and 3).
If that is there, and there is a bond, in a sufficient value. As ASG
said it is up to you, you can impose a bond that is the same value
as the obligation, if that is there and the Court is satisfied to that,
the Court can issued WPA then an there.
But having said that, as soon as the court issues a WPA, it has to
issue a directive to the Sheriff to see to it that when he serve
summons to the defendant, he will serve summons already
contemporaneously along with the;
(1) copy of the complaint;
(2) copy of application for WPA;
(3) copy of the bond that order the granting of Preliminary
Attachment and the Writ itself.
All of those will have to be furnished to the defendant, either it
should be contemporaneously but in some instances it is not, why?
-because of the bond, it was in that in some instances, the applicant
will just say, “I am willing to post a bond in any amount, in order to
obtain the..” So the Court will have to issue first a directive to the
amount of the bond, so what will happen is mag follow nalang yung
bond documents and the order granting WPA because the bond was
posted, but again it has to be submitted to the (D). At the same
time sana, but if not to follow nalang, as ASG said the reason for
that is being that the (D) should be given an opportunity to move
for the discharge of WPA.
Preliminary attachment, despite the fact that it is very invasive is
clearly an ancillary remedy. Meaning it may be granted at the start
of the proceeding to satisfy the judgment, but in the end the (PL)
may end up losing the case after all. In which instance provides for
a reimbursement or restitution to the defendant who suffered the
injury as a result by an irregular, illegal or improper attachment
issued by the Court.
And Court walang kasalanan, court merely reply on the statement
of the (PL), this is entirely possible that you might be granted
preliminary attachment and you might be losing the case anyway.
And the Court has a means to indemnify the party due to that
unlawful attachment.
ASG: Before we go to that, when the property is attached, generally
it is held under that Writ of Preliminary Attachment until the Court
renders a judgment in that case.
Are there exceptions?
-Yes, Sec. 11 of Rule 57;
Section 11. When attached property may be sold after levy on
attachment and before entry of judgment. — Whenever it
shall be made to appear to the court in which the action is
pending, upon hearing with notice to both parties, that the
property attached is perishable, or that the interests of all
the parties to the action will be subserved by the sale
thereof, the court may order such property to be sold at
public auction in such manner as it may direct, and the
proceeds of such sale to be deposited in court to abide the
judgment in the action.
In 2 instances;
(1) if the property attached is perishable;
(2) if it is agreed upon between the parties to sell the
attached properties in order to satisfy the judgment.
1st instance: Sa perishable that’s very (?), i.e. when you attached
goods, in storage and you are unable to maintain the cost of storing
(they melt – chocolate). Ang mangyayare jan, if you allow it to
remain there instead of selling them and satisfying the judgment
with the amount that you obtain the chocolates then they will just
perish. Nawalang saysay yung attachment mo, then if it is
persishable, more likely the Court will not require you to hold on to
that attachment until the judgment is rendered.
2nd instance: The situation is both parties, ay oo nga may utang
kapa sa aken, ganito nalang, ibenta nalang then hati nalang tayo.
Or i.e. yung utang ko sayo is 500K, and that property if we sell it to
1M then hati tayo. If the parties agree to that, then that will what is
happen, and the writ of attachment will be voluntarily discharged
and the Court can arrange them and agree that the parties split the
profits and as a result, the case ends. There is no need for a
preliminary attachment anymore because they already agree with
the amount satisfying the judgment.
ASG: What if the only property you find that can be attached is being
claimed by the other party? What is the recourse of the 3rd party?
-The recourse of the 3rd party is the same as the recourse of the 3rd
party in Rule 39, which are;
(1) terceria;
 (2) a bond that you post in favor of the sheriff so that he
will not touch the property anymore;
(3) separate reinvindicatory action that can be taken by the
3rd party claimant in the separate case.
Those remedies available in rule 39 also available in rule 57. And as
in rule 39, these remedies can be cumulatively resorted to, they
need not be resorted to consecutively they can be resorted to at the
same time.
ASG: What is the difference in Rule 39 and 57?
In Rule 39; That is already final and executory, yung WOE, the 3rd
party in that case can no longer participate in the proceedings being
held in the Court that is enforcing the Judgment. Kasi tapos na yung
kaso, you really has to resort to separate action.
Here in Rule 57, what will happen is the 3rd party has to intervene
in the main action which is the subject of this case. After all he has
a legal interest in the subject matter of the case, which is one of the
requirements for a person to intervene.
In this instance, it is more convenient if he intervenes there because
after all, in this case, there is nothing happens yet except except in
the issuance of writ of preliminary attachment. So he still has the
opportunity to present his (?) with respect with the property has
been attached during the entire proceedings. He is better off than
the 3rd party in a rule 39 in situation.
Rule 57 says also that you can file a separate reinvindicatory action,
he can free to do that but generally he can vindicate his right already
to the property by intervening in the main case which is the subject
of preliminary attachment.
ASG: What else can be done if the attachment is wrongful.
-If the attachment is wrongful, the defendant (not the 3 rd party),
the (D) can file an answer and at the same time move for the
discharge of the attachment.
 On what ground?
-He can argue that the attachment is improper or irregularly issued.
As ASG, they can argue there that there is no basis for attachment
because (1st argument) “I don’t qualify under any of the
circumstances provided for in section 1, kaya baket mo iaatach
property ko?”.
(2nd argument) that it was improperly issued, and so when we are
talking about the issuance of a preliminary attachment, we will go
back in what we are talking about requirements provided for in the
rules, sec. 2 and 3, that you will have a sworn affidavit.
So if kung walang recitation of the circumstances that would show
to the court that your situation falls under section 1, that’s already
a ground for the discharge of the preliminary attachment.
If there is no bond posted, or here, if there is a bond posted but if
it insufficient. Suppose a bond posted if only 100k but the court says
that you post 1M bond, certainly there is no basis for a preliminary
attachment under the circumstances. So those matters can be
raised in a motion to discharge the attachment.
However if the argument made is the bond insufficient, it is very
easy to immediately post sufficient bond in order to cure the defect.
But the more important and problematic situation is when the
motion to discharge is based on the facts that it is providently or
irregularly issued. So you will have to justify kung baket na issuhan
kung the requirements were not met.
For the one who is moving the discharge of the attachment, they
are sure to have it discharge if apart from the motion to discharge,
they are willing to post a counter-bond, in the same value as the
bond that was posted by the attaching party.
 Why? – because when you post that attachment bond, you
are telling to the court that I am willing to shoulder all the
damage that is going to be incurred should this court
determine that the attachment I have sought it turns out to
be illegal, improper or improvidently issued.
E, if the (D) or the party whose property was attached is willing to
posr a counter bond to match your bond, then there is no reason for
the sheriff to continue with the attachment. Because that counter
bond is saying that “I am willing to shoulder all the damage that will
be a result of the fact that the attachment is not issued.

Worst pa, is if the (D) apart from the motion to discharge the WOE
will be willing to deposit an amount instead of a bond to answer for
any damage or injury that may be caused because the attachment
do not proceed. Because he express a willingness to do that and the
court says “ok are you willing to post 1M, and then he deposits 1M,
kaso wala na the Court will not issue that attachment anymore.
Basically, if you are on the other side of WOE, that does not mean
na wala kang hope, especially if you can successfully argue that your
situation does not fall of any situation provided in Sec. 1 of Rule 57.
But para if you really want that attachment to be lifted and setaside,
you should post a bond or make a deposit in the court so that they
would know that you are sincere. That you are not trying to dispose
a property in violation of judiciary duty. Or trying to embezzle the
(PL) or swindle him etc.
More importantly that you have sufficient security to indemnify the
other party in case the attachment is not issued. Meaning at the
end, kahet walang attachment there will be something that will
satisfy the judgment, just in case the plaintiff will win. Ofcourse if
the (D) wins wala, doesn’t make any difference.
The important thing there on the side of the defendant, is that you
have to prove that everything is about worth, that your situation is
not one covered under sec. 1 of rule 57.
Also, in the motion to discharge, when you file that, you can file a
motion in which you should attach also counter-affidavits to counter
the affidavit that was issued by the applicant. Kasi diba may ginawa
yung applicant na kwento, na you are disposing of your properties
to defraud your creditor, so you in your motion to discharge, have
to be able to alay(?) the fears of the court, na walang ganyan na
nangyayare. One thing to apiece the court is to assure the court is
that you say you have sufficient securities in this country or
properties to answer for any judgment that the court issuing this
case.
ASG: Important thing to remember is that unlike them application
for preliminary attachment which can be handled ex-parte by the
court. When the (D) files a motion to discharge attachment, this has
the or, there will be a notice to the other party then there will be a
hearing. And then the court will determine after that hearing and
sometimes the presentation of evidence whether or not there is
basis to discharge the attachment. Ofcourse it is understandable
why there will be a hearing, because after all by that time the court
will have already acquired jurisdiction over both parties. So
certainly, both parties will want to be given an opportunity to
present their side on the matter so the court will have to
accommodate them.
ASG: Is that enough already for the (D)?
Sometimes it’s not, because apart from, kahet sabihin naten in the
end, mas lalo na in the end is it is the defendant wins the case, the
(D) will want to file a claim for damages on account of the improper,
irregular, or excessive attachment. Because the court will have ruled
in their favor and in doing so will have admitted that there was error
on the attachment of the property.
ASG: So what will happen? And how does the (D) claimed this?
Ang sabi sa Sec. 20;
Section 20. Claim for damages on account of improper,
irregular or excessive attachment. — An application for
damages on account of improper, irregular or excessive
attachment must be filed before the trial or before appeal is
perfected or before the judgment becomes executory, with
due notice to the attaching party and his surety or sureties
setting forth the facts showing his right to damages and the
amount thereof. Such damages may be awarded only after
proper hearing and shall be included in the judgment on the
main case.
So there are actually, if you look at this particular section, there is
2 (two) scenarios involved here;
1st scenario: in the main case, whatever it is, collection of sum of
money or recovery of possession of property, in which the writ of
preliminary attachment is wrongly issued, the (D) can already as
part of his evidence, his prayer for damages to claim damage as a
result of the improper, irregular, excessive attachment. Malay mo
nga naman, what if antagal tagal ng attachment nay an, you are not
able to utilize the property, you will not able to collect rentals from
it, so he has the right to seek indemnification for the damage caused
to him.

You can do that in that main case, but if, there are some instances,
or is more likely that the (D) will only seek for damages for improper
or excessive attachment after nanalo na sila sa main case.

ASG: So what will they do?

They will have to file the claim for damages on appeal, before the
appellate court. While that appeal is pending, you are wondering,
the appeal on the collection of sum of money in the case(?), syempre
natalo si (PL) so iaappeal nya yan.

While that appeal is pending, the (D) can at the same time see to it
that his application for damages as a result of the improper or
excessive attachment will be heard by the appellate court in the case
on appeal.

So this is one of the instances where the CA will be called upon to

hear or receive evidence to substantiate the claim for damages as a
result of the wrongful attachment.

In doing that, the (D) must prove with the best evidence obtained
the fact of loss or injuries suffered or the amount thereof. Such loss
or injury must be of the kind which is not only capable of proved but
must actually be proved with a reasonable degree of certainty.

As we all know, damages must be proved, you are not entitled to

damages unless you prove it.

So ayan nga, so those are two scenarios, one before Trial Court, and
one before Appellate Court.

In the Trial Court, can include the award of damages in the decision
of the main case so that it can also be appealed by the (PL) should
he lose the case. And it can also be a subject of the resolution on
appeal when the appellate court receives evidence on the claim for
damages.

INJUNCTION: RULE 58 CASE: JUDGE GODOFREDO ABULDO ADMIN

CASE (digest additional).