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RULE 57 PRELIMINARY ATTACHMENT - Coggle Diagram

- - - - ACTION TO RECOVER POSSESSION OF PROPERTY FRAUDULENTLY HIDDEN
        (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;
        
        ACTION FOR FRAUD IN CONTRACTING DEBT
        (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;
        
        ACTION FOR PARTY WHO REMOVED/DISPOSED OF PROPERTY TO DEFRAUD CREDITORS
        (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; or
        
        ACTION AGAINST NONRESIDENT ALIEN
        OR ON WHOM SUMMONS BY PUBLICATION MAY BE SERVED
        (LIKE UNKNOWN WHEREABOUTS)
        (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.
        
        ATTACHMENT MAY PROSPER OVER
        NON-RESIDENT
        Attachment or garnishment of property of a non-resident defendant located in the Philippines confers jurisdiction on the court in an otherwise personal action. In other words,
        
        THOUGH NO JURISDICTION IS OBTAINED OVER THE DEBTOR'S PERSON, [THE WRIT MAY BE IMPLEMENTED?]
        though no jurisdiction is obtained over the debtor's person, the case may proceed to judgment if there is property in the custody of the court that can be applied to its satisfaction.(Mabanag v. Gallemore)
        
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        Covers both real and personal property
        As Riano says
  - - - AFFIDAVIT MUST BE FILED
        BEFORE THE ORDER ISSUES
        The affidavit, and the bond required by the next succeeding section, must be duly filed with the court before the order issues.
      - REQUIREMENTS FOR APPLICANT'S BOND (Sec. 4)
        Section 4. Condition of applicant’s bond. –
        The party applying for the order must thereafter
        
        BOND FIXED BY COURT - give a bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ,
        
        DAMAGES & COSTS IN CASE APPLICANT IS NOT ENTITLED -conditioned that the latter will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto.
        
        HOW IMPLEMENTED (Sec. 5)
        WITHOUT DELAY; ONLY ATTACH AS SUFFICIENT TO SATISFY DEMAND
        Section 5. Manner of attaching property. – The sheriff enforcing the writ shall without delay and with all reasonable diligence attach, to await judgment and execution in the action, only so much of the property in the Philippines of the party against whom the writ is issued, not exempt from execution, as may be sufficient to satisfy the applicant’s demand,
        
        REQUIRED SUMMONS & DOCUMENTS
        FOR LEVY (Sec. 5)
        No levy on attachment pursuant to the writ issued under section 2 hereof shall be enforced unless it is preceded, or contemporaneously accompanied, by
        
        SERVICE OF SUMMONS - Service of summons together with a
        
        COPY OF COMPLAINT - copy of the complaint,
        
        APPLICATION - the application for attachment,
        
        AFFIDAVIT & BOND - the applicant’s affidavit and bond, and
        
        ORDER - the order and
        
        WRIT OF ATTACHMENT - writ of attachment, on the defendant within the Philippines.
        
        SUMMONS NOT REQUIRED FOR LEVY IF PERSONAL OR SUBSTITUTED SERVICE CANNOT BE MADE
        (Sec. 5)
        The requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served personally or by substituted service despite diligent efforts, or the defendant is a resident of the Philippines temporarily absent therefrom, or the defendant is a non-resident of the Philippines, or the action is one in rem or quasi in rem. (5a)
        
        SHERIFF'S RETURN
        REQUIREMENTS
        
        FULL STATEMENT OF HIS PROCEEDINGS UNDER THE WRIT
        
        COMPLETE INVENTORY OF PROPERTY ATTACHED
        
        COUNTER-BOND GIVEN BY PARTY AGAINST WHOM ATTACHMENT IS ISSUED
        
        SERVICE OF COPIES THEREOF TO APPLICANT
        
        Section 6. Sheriff’s return. – After enforcing the writ, the sheriff must likewise without delay make a return thereon to the court from which the writ issued, with a full statement of his proceedings under the writ and a complete inventory of the property attached, together with any counter-bond given by the party against whom attachment is issued, and serve copies thereof on the applicant.
        
        HOW ATTACHED DEPENDING ON PROPERTY (Sec. 7)
        Section 7. Attachment of real and personal property; recording thereof. – Real and personal property shall be attached by the sheriff executing the writ in the following manner:
        
        REAL PROPERTY OR GROWING CROPS, OR ANY INTEREST THEREIN
        (a) Real property, or growing crops thereon, or any interest therein,
        
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        IF IN CUSTODIA LEGIS = COPY OF WRIT OF ATTACHMENT + NOTICE THEREOF UPON CUSTODIAN
        If the property sought to be attached is in custodia legis, a copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such property. (7a)
        
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        Examination
        
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        NOT ATTACHED WHEN PARTY AGAINST WHOM ATTACHMENT IS ISSUED MAKES A DEPOSIT OR GIVES A COUNTER-BOND
        unless the former makes a deposit with the court from which the writ is issued, or gives a counter-bond executed to the applicant, in an amount equal to the bond fixed by the court in the order of attachment or to the value of the property to be attached, exclusive of costs.
      - IF THERE IS STILL A SUFFICIENT SECURITY TO SATISFY THE APPLICANT'S CLAIM, THEN THE ORDER OF ATTACHMENT MAY NOT BE GRANTED.
    - - RATIONALE: TO PREVENT ABSCONDMENT
        No notice to the adverse party or hearing of the application is required inasmuch as the time which the hearing will take could be enough to enable the defendant to abscond or dispose of his property before a writ of attachment issues.
        (Cuartero v. CA)
      - IMPLEMENTATION REQUIRES JURISDICTION OVER PERSON
        However, once the implementation commences, it is required that the court must have acquired jurisdiction over the defendant for without such jurisdiction, the court has no power and authority to act in any manner against the defendant. Any order issuing from the Court will not bind the defendant.
        (Cuartero v. CA)
        
        RECAP: SUMMONS NOT REQUIRED FOR LEVY IF PERSONAL OR SUBSTITUTED SERVICE CANNOT BE MADE (Sec. 5)
        The requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served personally or by substituted service despite diligent efforts, or the defendant is a resident of the Philippines temporarily absent therefrom, or the defendant is a non-resident of the Philippines, or the action is one in rem or quasi in rem. (5a)
      - TO QUESTION THE GROUNDS OF THE ISSUANCE OF A WRIT IS A QUESTION OF FACT
        The question as to whether a proper ground existed for the issuance of the writ is a question of fact the determination of which can only be had in appropriate proceedings conducted for the purpose (Peroxide Philippines Corporation v. CA)
        
        CONSEQUENCE OF BEING A QUESTION OF FACT
        Therefore, questioning whether a proper ground existed for the issuance of a writ may not be questioned on appeal by Rule 45 where purely questions of law are involved.
        
        So what are those "appropriate proceedings"?
        The hearing of the motion from the looks of it
      - ATTACHMENT CANNOT BE DISSOLVED IF THE GROUNDS OF SUCH ATTACHMENT IS THE SAME CAUSE OF ACTION IN THE MAIN CASE
        Moreover, an attachment may not be dissolved by a showing of its IRREGULAR OR IMPROPER ISSUANCE if it is upon a ground which is at the same time the applicant's cause of action in the main case since an anomalous situation would result if the issues of the main case would be ventilated and resolved in a mere hearing of a motion
        (Davao Light and Power Co., Inc. v. CA, supra,
        The Consolidated Bank and Trust Corp. Solidbank v. CA)