Function and Timing
Preliminary attachment is a provisional remedy by which property of the adverse party is placed in the custody of the law as security for the satisfaction of any judgment that may be recovered. It is ancillary to the principal action; it does not create the cause of action, determine liability, or transfer ownership of the attached property to the applicant.
The remedy may be sought at the commencement of the action or at any time before entry of judgment. Because attachment is a harsh remedy that may tie up property before final adjudication, the applicant must show strict compliance with the requisites of Rule 57 before the order issues.
The remedy is available not only to an original plaintiff but also to a proper party asserting a claim, such as a defendant on a counterclaim, a cross-claimant, or a third-party plaintiff, when the asserted claim and the adverse party fall within the grounds for attachment.
Requisites for Issuance
An order of preliminary attachment requires a principal action, an application for attachment, an affidavit based on personal knowledge, and an applicant's bond. These requisites are cumulative; the absence of a statutory ground, a sufficient affidavit, or the required bond prevents valid issuance.
| Requisite | Rule | Reason |
|---|---|---|
| Pending or commenced action | The remedy must be tied to a claim capable of resulting in a judgment or recovery of property. | Attachment is only security for the judgment; it cannot exist independently of the main action. |
| Proper applicant | The party seeking attachment must be enforcing a claim against the adverse party. | The remedy protects the claimant's ability to satisfy a favorable judgment. |
| Statutory ground | The case must fall under one of the grounds recognized for preliminary attachment. | Attachment is not granted merely because collection may be difficult. |
| Affidavit of merit | The affidavit must show a sufficient cause of action, the statutory ground, lack of other sufficient security, and the amount or value recoverable over legal counterclaims. | The court must have factual basis to interfere with property before judgment. |
| Applicant's bond | The applicant must file a bond in the amount fixed by the court before the order issues. | The adverse party must have recourse for costs and damages if the attachment is later held improper. |
Statutory Grounds That Must Be Shown
The affidavit must establish that the case belongs to one of the grounds for preliminary attachment. These grounds are exclusive because the remedy is statutory.
- Impending departure with intent to defraud. In an action for recovery of a specified amount of money or damages, other than moral and exemplary damages, arising from law, contract, quasi-contract, delict, or quasi-delict, attachment may issue against a party who is about to depart from the Philippines with intent to defraud creditors.
- Fraudulent misapplication or conversion. Attachment may issue in an action for money or property embezzled, fraudulently misapplied, or converted by a public officer, corporate officer, attorney, broker, agent, clerk, or another person acting in a fiduciary capacity.
- Recovery of property wrongfully taken, detained, or converted. Attachment may issue when the property, or any part of it, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or the officer.
- Fraud in contracting or performing the obligation. The fraud must relate to the contracting of the debt, the incurring of the obligation, or the performance of the obligation on which the action is brought.
- Removal or disposal of property to defraud creditors. The adverse party must have removed or disposed of property, or be about to do so, with fraudulent intent.
- Nonresidence, absence, or summons by publication. Attachment may issue against a party who does not reside and is not found in the Philippines, or against one on whom summons may be served by publication.
Fraud as a ground for attachment must be pleaded and supported by specific facts. Mere failure to pay, breach of contract, insolvency, refusal to settle, or difficulty of collection does not by itself prove fraudulent intent. The facts must indicate deception, concealment, dissipation of assets, or another circumstance showing that attachment is necessary to preserve the claimant's remedy.
Affidavit Requirement
The affidavit is the factual foundation of preliminary attachment. It may be executed by the applicant or by another person who personally knows the facts. Personal knowledge is essential because attachment cannot rest on hearsay, suspicion, or formulaic conclusions.
The affidavit must show four matters. First, a sufficient cause of action exists. Second, the case is one of the recognized grounds for attachment. Third, there is no other sufficient security for the claim sought to be enforced. Fourth, the amount due to the applicant, or the value of the property whose possession is sought to be recovered, is at least as much as the sum for which the order is granted, over and above all legal counterclaims.
A sufficient cause of action means facts showing the applicant's right, the adverse party's correlative obligation, and the violation of that right. The affidavit need not prove the case conclusively, but it must present enough facts to justify provisional interference with property.
The statement that there is no other sufficient security prevents unnecessary attachment where the claim is already adequately secured by a mortgage, pledge, lien, deposit, or other legally effective security. If existing security is insufficient, the affidavit should indicate the deficiency rather than merely recite the statutory phrase.
The amount stated in the affidavit controls the proportionality of the attachment. The remedy should reach only property sufficient to secure the applicant's demand or the value of the property involved, exclusive of costs, and only to the extent not offset by legal counterclaims appearing from the applicant's own showing.
Conclusory affidavits are vulnerable because the court must be able to determine from the facts, not from labels, that attachment is authorized. An affidavit stating only that the defendant acted fraudulently, intends to abscond, or has no sufficient security is ordinarily inadequate unless it also states the acts, circumstances, and basis of personal knowledge supporting those conclusions.
Applicant's Bond
The applicant must give a bond executed in favor of the adverse party in the amount fixed by the court. The affidavit and the bond must be filed with the court before the order of attachment issues.
The bond answers for all costs that may be adjudged to the adverse party and for all damages sustained by reason of the attachment if the court finally adjudges that the applicant was not entitled to the remedy. Its purpose is indemnity, not satisfaction of the principal claim.
The amount of the bond is fixed by the court in the order granting attachment. The court must relate the amount to the applicant's demand or to the value of the property to be attached, while keeping in mind that the bond secures the adverse party against wrongful attachment damages.
The applicant's bond is distinct from the adverse party's deposit or counterbond. The applicant's bond is a condition for issuance and protects the adverse party from wrongful attachment. The adverse party's deposit or counterbond is a means to prevent or discharge the attachment by substituting security for the property.
| Bond | Filed by | Purpose | Effect |
|---|---|---|---|
| Applicant's bond | Party seeking attachment | Indemnifies the adverse party for costs and damages if attachment is improper. | Required before the order issues. |
| Counterbond or deposit | Adverse party | Substitutes security for the property attached or sought to be attached. | Prevents enforcement against the property or supports discharge of an existing levy. |
Liability on the applicant's bond depends on a finding that the applicant was not entitled to attachment, or that the attachment was otherwise wrongful, irregular, or excessive. Damages must be connected to the attachment itself, such as loss from wrongful seizure, disruption of business, expenses of securing discharge, or injury caused by excessive levy.
Issuance of the Order of Attachment
The order may be issued ex parte or upon motion with notice and hearing. Ex parte issuance is allowed because prior notice may defeat the provisional remedy by giving the adverse party time to remove, conceal, or dispose of property. The absence of prior hearing is balanced by the affidavit and bond requirements and by the adverse party's remedies to discharge or quash the attachment.
The order may be issued by the court where the action is pending, or by an appellate court when the case is already within its authority. The issuing court must independently determine that the requisites exist; the order should not be a mechanical response to the applicant's allegations.
An order of attachment may issue at the commencement of the action even before summons is served, because jurisdiction over the defendant's person is not a prerequisite to issuance of the provisional writ. Enforcement by levy, however, is governed by the service requirements for implementation.
The order is the judicial authorization for attachment; the writ is the process by which the sheriff implements that authorization. The order grants the remedy and fixes its limits, while the writ commands the sheriff to attach property within those limits.
Contents of the Order
The order must direct the sheriff to attach so much property in the Philippines of the adverse party, not exempt from execution, as may be sufficient to satisfy the applicant's demand, unless the adverse party makes the required deposit or gives a counterbond in the amount fixed by the court.
The amount fixed in the order may correspond to the amount sufficient to satisfy the applicant's demand or to the value of the property to be attached as stated by the applicant, exclusive of costs. This amount gives the sheriff a ceiling and protects the adverse party against excessive attachment.
The order should therefore identify the party whose property may be attached, the amount secured, the scope of attachable property, the sheriff's authority, and the adverse party's option to avoid or discharge attachment by deposit or counterbond. It need not list specific property unless the application and the nature of the claim require particular identification.
Only property of the party against whom attachment is issued may be attached. Property exempt from execution cannot be reached, and property belonging to third persons cannot be seized merely because it is in the possession of the adverse party. If third-party ownership is asserted, the sheriff and the parties must proceed under the rules governing third-party claims.
The order authorizes attachment of property within the Philippines. Several writs may issue at the same time to sheriffs of different judicial regions when necessary to reach property in different places, but each writ remains subject to the amount and limits fixed by the order.
Connection Between Issuance and Enforcement
Issuance of the order does not by itself create a lien on specific property. The attachment lien arises upon valid levy or garnishment under the writ, and only over property lawfully attached.
As a rule, levy under the writ must be preceded or contemporaneously accompanied by service on the defendant of summons, the complaint, the application for attachment, the applicant's affidavit and bond, and the order and writ of attachment. This requirement protects due process by ensuring that the adverse party learns of the action and of the basis for the seizure when the writ is enforced.
The service requirement for levy does not apply when summons cannot be served personally or by substituted service despite diligent efforts, when the defendant is a resident temporarily absent from the Philippines, when the defendant is a nonresident, or when the action is in rem or quasi in rem. In these situations, attachment may be essential to jurisdiction over the res or to the preservation of the property subject of the action.
If the order is issued without the required affidavit or bond, or if the affidavit fails to show a statutory ground, the attachment is vulnerable to discharge. If the order is validly issued but the levy is implemented without the required service and no exception applies, the defect affects enforcement of the writ rather than the substantive sufficiency of the applicant's claim.
Effect of Compliance
When the requisites are satisfied, the court may authorize the sheriff to place sufficient nonexempt property of the adverse party under attachment as security for the applicant's potential judgment. The adverse party retains ownership, but the property becomes subject to the court's custody and to the priority created by a valid attachment lien.
Strict compliance matters because preliminary attachment operates before final judgment. The affidavit demonstrates necessity, the bond supplies indemnity, and the order defines the sheriff's authority. Together, they limit the remedy to cases where the law permits provisional seizure and where the adverse party receives procedural protection against wrongful attachment.