G.R. No.
175587               September 21, 2007 grounds stated in paragraphs (a) to (e) of Section 1, Rule 57
PHILIPPINE COMMERCIAL INTERNATIONAL
BANK, Petitioner,  vs. JOSEPH ANTHONY M.
ALEJANDRO,  Respondent.
FACTS:
On October 23, 1997, petitioner filed against respondent a
complaint for sum of money with prayer for the issuance of a
writ of preliminary attachment. Said complaint alleged that on
September 10, 1997, respondent, a resident of Hong Kong,
executed in favor of petitioner a promissory note obligating
himself to payP249,828,588.90 plus interest.
In praying for the issuance of a writ of preliminary attachment
under Section 1 paragraphs (e) and (f) of Rule 57 of the Rules
of Court, petitioner alleged that (1) respondent fraudulently
withdrew his unassigned deposits notwithstanding his verbal
promise to PCIB Assistant Vice President Corazon B.
Nepomuceno not to withdraw the same prior to their
assignment as security for the loan; and (2) that respondent is
not a resident of the Philippines. The application for the
issuance of a writ was supported with the affidavit of
Nepomuceno.
Petitioner also contends that even if respondent is considered
a resident of the Philippines, attachment is still proper under
Section 1, paragraph (f), Rule 57 of the Rules of Court since
he (respondent) is a resident who is temporarily out of the
Philippines upon whom service of summons may be effected
by publication.
ISSUE:
WON attachment is proper in this case
HELD: NO.
In the hearings of the motion, and oral arguments of counsels
before the Court, it appears that plaintiff BANK through its
contracting officers Vice President Corazon B. Nepomuceno
and Executive Vice President Jose Ramon F. Revilla, personally
transacted with defendant mainly through defendant‘s
permanent residence in METRO-MANILA, either in defendant‘s
home address in Quezon City or his main business address at
the Romulo Mabanta Buenaventura Sayoc & Delos Angeles in
MAKATI and while at times follow ups were made through
defendant‘s temporary home and business addresses in
Hongkong. It is therefore clear that plaintiff could not deny
their personal and official knowledge that defendant‘s
permanent and official residence for purposes of service of
summons is in the Philippines.
On the above findings, it is obvious that plaintiff already knew
from the beginning the deficiency of its second ground for
attachment [i.e.,] disposing properties with intent to defraud
his creditors, and therefore plaintiff had to resort to this
misrepresentation that defendant was residing out of the
Philippines and suppressed the fact that defendant‘s
permanent residence is in METRO MANILA where he could be
served with summons.
The purposes of preliminary attachment are: (1) to seize the
property of the debtor in advance of final judgment and to
hold it for purposes of satisfying said judgment, as in the
of the Rules of Court; or (2) to acquire jurisdiction over the
action by actual or constructive seizure of the property in
those instances where personal or substituted service of
summons on the defendant cannot be effected, as in
paragraph (f) of the same provision.
Corollarily, in actions in personam, such as the instant case for
collection of sum of money, summons must be served by
personal or substituted service, otherwise the court will not
acquire jurisdiction over the defendant. In case the defendant
does not reside and is not found in the Philippines (and hence
personal and substituted service cannot be effected), the
remedy of the plaintiff in order for the court to acquire
jurisdiction to try the case is to convert the action into a
proceeding in rem or quasi in rem by attaching the property of
the defendant. Thus, in order to acquire jurisdiction in actions
in personam where defendant resides out of and is not found
in the Philippines, it becomes a matter of course for the court
to convert the action into a proceeding in rem or quasi in rem
by attaching the defendant‘s property. The service of
summons in this case (which may be by publication coupled
with the sending by registered mail of the copy of the
summons and the court order to the last known address of the
defendant), is no longer for the purpose of acquiring
jurisdiction but for compliance with the requirements of due
process.
However, where the defendant is a resident who is
temporarily out of the Philippines, attachment of his/her
property in an action in personam, is not always necessary in
order for the court to acquire jurisdiction to hear the case.
Section 16, Rule 14 of the Rules of Court reads:
Sec. 16. Residents temporarily out of the Philippines. – When
an action is commenced against a defendant who ordinarily
resides within the Philippines, but who is temporarily out of it,
service may, by leave of court, be also effected out of the
Philippines, as under the preceding section.
The preceding section referred to in the above provision is
Section 15 which provides for extraterritorial service – (a)
personal service out of the Philippines, (b) publication coupled
with the sending by registered mail of the copy of the
summons and the court order to the last known address of the
defendant; or (c) in any other manner which the court may
deem sufficient.
In Montalban v. Maximo,31 however, the Court held that
substituted service of summons (under the present Section 7,
Rule 14 of the Rules of Court) is the normal mode of service of
summons that will confer jurisdiction on the court over the
person of residents temporarily out of the Philippines.
Meaning, service of summons may be effected by (a) leaving
copies of the summons at the defendant‘s residence with
some person of suitable discretion residing therein, or (b) by
leaving copies at the defendant‘s office or regular place of
business with some competent person in charge thereof.32
Hence, the court may acquire jurisdiction over an action in
personam by mere substituted service without need of
attaching the property of the defendant.
The rationale in providing for substituted service as the
normal mode of service for residents temporarily out of the
Philippines, was expounded in Montalban v. Maximo,33 in this
wise:

A man temporarily absent from this country leaves a definite

place of residence, a dwelling where he lives, a local base, so
to speak, to which any inquiry about him may be directed and
where he is bound to return. Where one temporarily absents
himself, he leaves his affairs in the hands of one who may be
reasonably expected to act in his place and stead; to do all
that is necessary to protect his interests; and to communicate
with him from time to time any incident of importance that
may affect him or his business or his affairs. It is usual for
such a man to leave at his home or with his business
associates information as to where he may be contacted in
the event a question that affects him crops up.

Thus, in actions in personam against residents temporarily out

of the Philippines, the court need not always attach the
defendant‟s property in order to have authority to try the
case. Where the plaintiff seeks to attach the defendant‟s
property and to resort to the concomitant service of summons
by publication, the same must be with prior leave, precisely
because, if the sole purpose of the attachment is for the court
to acquire jurisdiction, the latter must determine whether
from the allegations in the complaint, substituted service (to
persons of suitable discretion at the defendant‟s residence or
to a competent person in charge of his office or regular place
of business) will suffice, or whether there is a need to attach
the property of the defendant and resort to service of
summons by publication in order for the court to acquire
process.

In the instant case, it must be stressed that the writ was

issued by the trial court mainly on the representation of
petitioner that respondent is not a resident of the
Philippines.34 Obviously, the trial court‘s issuance of the
writ was for the sole purpose of acquiring jurisdiction
to hear and decide the case. Had the allegations in the
complaint disclosed that respondent has a residence in
Quezon City and an office in Makati City, the trial
court, if only for the purpose of acquiring jurisdiction,
could have served summons by substituted service on
the said addresses, instead of attaching the property
of the defendant. The rules on the application of a writ
of attachment must be strictly construed in favor of
the defendant. For attachment is harsh, extraordinary,
and summary in nature; it is a rigorous remedy which
exposes the debtor to humiliation and annoyance.35 It
should be resorted to only when necessary and as a
last remedy.

It is clear from the foregoing that even on the allegation that

respondent is a resident temporarily out of the Philippines,
petitioner is still not entitled to a writ of attachment because
the trial court could acquire jurisdiction over the case by
substituted service instead of attaching the property of the
defendant. The misrepresentation of petitioner that
respondent does not reside in the Philippines and its omission
of his local addresses was thus a deliberate move to ensure
that the application for the writ will be granted.