SUBJECT: The Concept of ‘Preliminary Attachment’ and Grounds

I. Introduction

This memorandum provides an exhaustive analysis of the concept of preliminary attachment under Philippine law, specifically within the context of Special Civil Actions. Preliminary attachment is a provisional remedy, a legal tool available to a plaintiff at the commencement of an action or at any time before entry of judgment. Its primary purpose is to secure the satisfaction of any judgment that may be recovered by the plaintiff. It is governed by Rule 57 of the Rules of Court. This remedy is in rem or quasi in rem in nature, as it is directed against the property of the defendant. It is crucial to understand that preliminary attachment is not a cause of action in itself but an ancillary remedy to a principal action.

II. Nature and Purpose of Preliminary Attachment

The nature of preliminary attachment is provisional and ancillary. It is granted to ensure that, after the plaintiff secures a favorable judgment, there will be property of the defendant within the jurisdiction of the court that can be levied upon for satisfaction. Its purposes are threefold: (1) to seize the property of the defendant in advance of final judgment and hold it as security for the satisfaction of any judgment that may be recovered; (2) to prevent the defendant from disposing of his property during the pendency of the action to render a potential judgment ineffectual; and (3) to subject the property of the defendant to the execution of the judgment. It is a harsh remedy and, therefore, is strictly construed against the applicant.

III. Conditions for the Issuance of a Writ of Preliminary Attachment

A writ of preliminary attachment may be issued at the commencement of an action or during its pendency, but not after judgment has been rendered. The applicant must show, through an affidavit and a bond, the following foundational conditions: (a) the case is one of those enumerated in Section 1, Rule 57 (the grounds); (b) there is no other sufficient security for the claim sought to be enforced by the action; and (c) the amount due to the applicant, or the value of the property sought to be recovered, is as much as the sum for which the order of attachment is granted. The court must be satisfied, based on the applicant’s ex parte application and supporting affidavit, that a ground exists.

IV. Grounds for Preliminary Attachment under Section 1, Rule 57

The grounds upon which a plaintiff may apply for and be granted a writ of preliminary attachment are exclusively enumerated in Section 1 of Rule 57. They are:

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 with intent to defraud his creditors.

In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, corporate officer, attorney, factor, broker, agent, or clerk, in the course of his employment or fiduciary obligations.

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.

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.

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.

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.

V. The Procedural Steps for Obtaining a Writ

The procedure is initiated by the filing of an ex parte application supported by an affidavit stating the facts constituting the ground for attachment. The affidavit must be based on the personal knowledge of the affiant and must show: (a) a sufficient cause of action; (b) the ground for attachment as enumerated; (c) that there is no other sufficient security for the claim; and (d) the amount of the claim. Upon filing of the application and approval of the requisite bond, the judge may issue the writ ex parte. The writ is then implemented by the sheriff through levy upon the properties of the defendant, not exempt from execution, within the court’s jurisdiction. The defendant may, at any time after levy, file a motion to discharge the attachment on grounds provided by the rules, such as improper or irregular issuance, or by posting a counter-bond.

VI. The Affidavit and Bond Requirements

The applicant’s affidavit is the cornerstone of the application. It must allege facts, not mere conclusions of law, showing the existence of at least one statutory ground. A defective affidavit is fatal to the application. The applicant is also required to post an attachment bond, executed to the adverse party, in an amount fixed by the court. This bond is intended to answer for all costs and damages which the defendant may sustain by reason of the attachment, should the court finally adjudge that the applicant was not entitled thereto. The bond secures the defendant against any loss or damage resulting from a wrongful attachment.

VII. Comparative Analysis: Grounds for Preliminary Attachment vs. Grounds for Preliminary Injunction

While both are provisional remedies, preliminary attachment and preliminary injunction serve distinct purposes and have different legal bases. The following table compares their primary grounds:

Aspect	Preliminary Attachment (Rule 57)	Preliminary Injunction (Rule 58)
Primary Objective	To seize property as security for a potential money judgment.	To preserve the status quo and prevent irreparable injury during litigation.
Nature of Main Action	Typically an action in personam for a sum of money or property.	Applicable to a wide range of actions where the subject of the litigation is threatened.
Core Legal Grounds	Based on defendant’s fraudulent conduct, concealment of property, non-residence, or risk of departure to defraud creditors.	Based on the applicant’s right being violated, commission/continuance of an act that would cause injustice, or the need to preserve status quo.
Key Statutory Trigger	Specific acts by the defendant that jeopardize the satisfaction of a future judgment (e.g., fraud, disposal of assets).	The necessity to prevent a threatened wrong that would cause irreparable injury before a final adjudication.
Effect on Property/Conduct	Direct levy and seizure of the defendant’s property.	Restrains a party from performing a particular act or compels the performance of a particular act.

VIII. Discharge of Attachment

A writ of preliminary attachment may be discharged on several grounds provided under Rule 57. The primary modes are: (1) by filing a motion to discharge on the grounds that it was improperly or irregularly issued (e.g., defective affidavit, lack of ground); or (2) by the defendant posting a counter-bond in an amount equal to that fixed by the court in the order of attachment, or to the value of the property attached as stated by the applicant. The posting of a counter-bond does not constitute an admission of liability nor a waiver of defenses. It simply replaces the attached property as security.

IX. Relevant Jurisprudence and Doctrines

The Supreme Court has consistently held that preliminary attachment is a harsh remedy and must be strictly construed. The grounds must be clearly alleged and proved. In Davao Light & Power Co., Inc. v. Court of Appeals, the Court emphasized that the applicant’s affidavit must contain factual, not merely conclusory, allegations of fraud or other statutory ground. In Molina v. Paz, the Court ruled that the existence of a ground for attachment is determined in an ex parte hearing, while the issue of the validity of the attachment is determined in a hearing with notice to the defendant. The doctrine of piercing the veil of corporate fiction may also be invoked in attachment proceedings if used to defraud creditors.

X. Conclusion

Preliminary attachment is a critical provisional remedy designed to prevent a defendant from rendering a prospective judgment ineffectual by dissipating or concealing assets. Its application is strictly limited to the grounds enumerated in Rule 57, Section 1, and requires a meticulous showing via a detailed affidavit and the posting of a bond. Given its drastic nature, courts exercise caution in its issuance. A clear understanding of its distinct grounds, procedural requirements, and the comparative context with other remedies like preliminary injunction is essential for its proper and effective use in Special Civil Actions.