Nature and Function
Preliminary attachment is a provisional remedy under Rule 57 by which property of the adverse party is taken into legal custody as security for the satisfaction of any judgment that may be recovered in the action.
It is ancillary to a principal action; it does not create an independent cause of action, adjudicate ownership, or determine the merits of the complaint.
The remedy is harsh because it may seize property before final judgment, so the rules on its issuance and enforcement are strictly construed against the applicant and liberally in favor of the person whose property is attached.
The object of attachment is preservation of assets, not punishment of the defendant; it prevents the judgment from becoming ineffectual through absconding, concealment, fraudulent transfer, or absence from the jurisdiction.
Attachment creates a specific lien over the property validly levied upon, subject to prior liens, lawful exemptions, and superior rights of third persons.
The lien is provisional and contingent; it becomes useful for satisfaction of the judgment only if the attaching party ultimately obtains a favorable judgment.
The writ reaches only property not exempt from execution, because a provisional seizure cannot be broader than the property that may ultimately answer for the judgment.
When the Remedy Is Available
Rule 57 permits attachment at the commencement of the action or at any time before entry of judgment.
The remedy is available in the court where the action is pending, and in appropriate cases may be issued by an appellate court when the action is already before it and the circumstances justify preservation of attachable property.
The claim must be one for which attachment is legally allowed, and the applicant must show that the case falls within one of the recognized statutory grounds.
A simple action for collection of money does not automatically justify attachment; there must be a qualifying circumstance such as fraudulent intent, fiduciary conversion, concealment of property, departure to defraud creditors, or nonresidence coupled with absence from the Philippines or service by publication.
The amount secured by attachment is limited by the applicant's demand, after crediting payments and recognizing legal counterclaims apparent from the record.
Moral and exemplary damages are generally excluded from the recoverable amount for purposes of the ordinary money-claim ground because they are not fixed, liquidated, or mechanically ascertainable before trial.
Classes of Cases Covered
| Situation | Controlling Idea |
|---|---|
| Money or damages claim against a party about to depart from the Philippines | The departure must be accompanied by intent to defraud creditors, not merely travel, relocation, or inconvenience to collection. |
| Misappropriation, conversion, or willful breach of duty by a fiduciary or officer | The law protects property or money entrusted to one who occupies a position of confidence, agency, office, or fiduciary responsibility. |
| Recovery of property unjustly or fraudulently taken, detained, or converted | Attachment is proper when the property, or its proceeds, has been concealed, removed, or disposed of to prevent recovery. |
| Fraud in contracting the debt or in performing the obligation | The fraud must be specific and material, and must relate to the creation or performance of the obligation sued upon. |
| Removal or disposition of property with intent to defraud creditors | The decisive fact is the fraudulent purpose behind the transfer, concealment, or threatened disposition. |
| Nonresident defendant not found in the Philippines, or defendant served by publication | Attachment may give the court control over property in the Philippines and may limit the judgment to the attached property when personal jurisdiction is absent. |
Application, Affidavit, and Bond
The applicant must file an affidavit showing that a sufficient cause of action exists, that the case is one of those in which attachment may issue, that there is no other sufficient security for the claim, and that the amount due is as much as the sum for which the order is sought.
The affidavit must state facts, not conclusions; bare allegations of fraud, concealment, or intent to defraud do not justify seizure of property before trial.
Fraud must be pleaded and supported with particularity because fraudulent intent cannot be presumed from ordinary nonpayment, business reverses, or refusal to settle a disputed obligation.
The applicant must post a bond in an amount fixed by the court, conditioned to answer for all costs and damages that the adverse party may sustain if the attachment is later found improper, irregular, or excessive.
The attachment bond is a statutory protection for the defendant; it is not a substitute for proof of the ground for attachment.
Failure to file a sufficient affidavit or bond makes the writ vulnerable to dissolution, and a defective bond may expose the applicant and sureties to liability for damages caused by the levy.
Issuance of the Order and Writ
The order of attachment directs the sheriff to attach property of the adverse party not exempt from execution and sufficient to satisfy the applicant's demand, unless the adverse party deposits the required amount or posts an adequate counterbond.
The court must determine from the application, affidavit, and bond that the legal requisites exist; attachment cannot rest on routine approval or on the applicant's fear that collection may later be difficult.
The writ may be issued ex parte because advance notice may defeat the remedy by giving a fraudulent debtor time to remove or conceal property.
Ex parte issuance does not eliminate due process because the rules require service before or at enforcement, allow immediate challenge by motion to discharge, and impose liability for wrongful attachment.
The writ is implemented by the sheriff, not by the attaching party, because attached property is placed in custodia legis and remains under the control of the court.
The sheriff must attach only enough property to secure the amount stated in the order, and an excessive levy may be reduced or discharged as to the excess.
Service and Enforcement
As a general rule, the writ may not be enforced unless service of summons, together with the complaint, application, affidavit, bond, order, and writ, precedes or accompanies the levy.
This rule protects the defendant from secret seizure without notice of the action and the provisional remedy being enforced.
Prior or contemporaneous service is not required 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.
The court may issue the writ before acquiring personal jurisdiction over the defendant, but enforcement must comply with the service rule unless an exception applies.
When a nonresident is not found in the Philippines and does not voluntarily appear, attachment of property in the Philippines may support jurisdiction over the property, but any judgment is enforceable only against the attached property and not as a personal judgment beyond it.
Property is attached according to its nature: real property is levied upon by filing the required notice and description with the proper registry, tangible personal property is taken into custody when capable of manual delivery, and debts, credits, bank deposits, shares, and other incorporeal interests are reached through garnishment or service upon the person or entity holding them.
Garnishment under attachment is a mode of levy, not a separate cause of action; it binds debts or credits owed to the defendant in the hands of the garnishee.
A garnishee who receives lawful notice must preserve the property or credit subject to the court's orders and may become liable if the garnishee disregards the attachment.
Property Subject to Attachment
Only property of the adverse party may be attached, and property belonging to a stranger cannot be held merely because it is in the defendant's possession.
Co-owned property or property subject to prior encumbrances may be attached only to the extent of the defendant's attachable interest, subject to the rights of co-owners and lienholders.
Property exempt from execution remains exempt from preliminary attachment because the provisional remedy cannot defeat statutory exemptions protecting necessary property, wages, benefits, or other protected assets.
Property already in custodia legis generally cannot be seized by another sheriff without leave of the court controlling it, because conflicting court custody would impair orderly administration of justice.
A third person claiming ownership or a superior right over attached property may assert a third-party claim and may pursue appropriate remedies to protect the property from wrongful levy.
Effect of Attachment During the Action
Attachment does not transfer title to the attaching party; it gives a provisional lien and places the property under legal control pending judgment.
The defendant remains the owner of attached property until sale under execution or other lawful disposition, but the defendant's power to deal with the property is burdened by the attachment lien.
A transfer after valid levy is generally subject to the attachment and cannot defeat the attaching creditor's priority as against the attached property.
The attachment lien takes effect from the time of a valid levy, not from the filing of the complaint or the issuance of the writ.
Priority disputes are resolved by the timing and validity of competing liens, the nature of the property, registration requirements, and the existence of superior statutory or consensual rights.
The remedy remains dependent on the principal action, so dismissal of the complaint, satisfaction of the claim, or final judgment against the attaching party generally terminates the attachment subject to claims for damages.
Discharge and Dissolution
The adverse party may seek discharge of the attachment by posting a counterbond, by showing that the writ was improperly or irregularly issued or enforced, by proving that the applicant's bond is insufficient, by showing that the attachment is excessive, or by establishing that the property is exempt or belongs to a third person.
A motion to discharge directly tests the provisional remedy and does not necessarily resolve the main case on the merits.
When discharge is sought because the ground for attachment is untrue, the court may receive evidence on the existence of fraud, concealment, intent to defraud, nonresidence, or other asserted ground.
The court may discharge the whole attachment if the writ is legally unsupported, or discharge only part of it if the levy is excessive or if only specific property is improperly held.
A defective or insufficient applicant's bond may justify discharge unless the defect is seasonably corrected in the manner allowed by the court and the rules.
Dissolution restores the property to the defendant or releases the garnished credit, but it does not automatically dispose of the complaint or prevent trial on the principal claim.
Counterbond as Substitute Security
A counterbond is a security filed by the defendant to discharge the attachment and substitute the bond for the property seized.
The counterbond protects the attaching party by preserving a fund or undertaking answerable for the judgment, while restoring possession or control of the attached property to the defendant.
When the entire attachment is to be discharged, the counterbond is generally equal to the amount fixed in the order of attachment, exclusive of costs; when only particular property is to be released, the amount may be measured by the value of that property as determined by the court.
Posting a counterbond is not an admission of liability and does not waive defenses to the complaint or objections to the propriety of the attachment.
Once property is released by counterbond, the attaching creditor's practical security shifts from the specific property to the undertaking of the bond and its sureties.
If the plaintiff obtains final judgment and execution is returned unsatisfied in whole or in part, liability on the counterbond may be enforced against the sureties after notice and hearing in the same action.
Judgment and Satisfaction
If judgment is rendered for the attaching party, the attached property may be applied to satisfy the judgment in the manner provided by the rules.
Money attached may be delivered to the judgment creditor, debts and credits may be collected, and other attached property may be sold under execution to satisfy the judgment.
If the attached property is insufficient, execution may issue against other nonexempt property of the judgment debtor for the balance, provided the judgment is personally enforceable against that party.
If judgment is rendered against the attaching party, the attachment must be discharged and the property or proceeds returned to the person entitled to them.
When the main action ends in a manner showing that the attachment was wrongful, irregular, or excessive, the defendant may recover damages chargeable against the applicant's attachment bond.
Damages for wrongful attachment should be claimed in the same action, with notice to the surety, before the judgment becomes final or before appeal is perfected when the rules require that timing.
The damages may include losses proximately caused by the wrongful levy, including loss of use, injury to business, expenses of discharge, and attorney's fees when legally justified and proven.
Relationship to Other Provisional Remedies
| Remedy | Main Function | Key Distinction from Attachment |
|---|---|---|
| Preliminary attachment | Secures property to answer for a possible judgment. | It is aimed at preserving assets, usually because collection is threatened by fraud, concealment, absconding, or absence. |
| Preliminary injunction | Commands or restrains acts to preserve rights pending litigation. | It operates on conduct, while attachment operates on property as security. |
| Receivership | Places property under a receiver for preservation, management, or administration. | It is used when property needs neutral management, while attachment is used to secure satisfaction of a judgment. |
| Replevin | Recovers possession of specific personal property claimed by the applicant. | It is possessory and concerns identified personal property, while attachment may reach various property as security for a claim. |
| Execution | Enforces a judgment. | It follows an enforceable judgment, while preliminary attachment precedes final enforcement and depends on special grounds. |
Controlling Principles
- Attachment is extraordinary because it permits seizure before final adjudication; the applicant must clearly show statutory entitlement.
- The writ is ancillary and falls with the principal action unless preserved by judgment, bond liability, or specific rule-based consequence.
- The factual ground for attachment must be distinct from the mere existence of an unpaid claim.
- Fraud, concealment, and intent to defraud must be supported by specific facts showing a real risk that the judgment will be defeated.
- The applicant's bond protects the defendant from wrongful seizure, while the defendant's counterbond substitutes security for the released property.
- The sheriff's levy determines the attachment lien and must comply with the rules governing the type of property attached.
- Prior or contemporaneous service is the normal condition for enforcement, subject only to recognized exceptions where service is impracticable or jurisdiction is directed at the property.
- Attachment against a nonresident without personal jurisdiction is effective only to the extent that property in the Philippines has been validly brought under the court's control.
- Discharge of attachment does not bar the action, and success in the action does not cure a writ that was improperly issued if damages from wrongful attachment are properly established.
- The remedy balances the creditor's need for meaningful judgment enforcement against the defendant's right to property, notice, and protection from baseless provisional seizure.