PROVISIONAL REMEDIES

Rule 57 Preliminary Attachment

Section 1. Grounds upon which attachment may issue. At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases:(a) 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;(b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;(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;(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;(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(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.A. Section 13, Rule 39. Property exempt from execution. Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution:(a) The judgment obligor's family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith;(b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood;(c) Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation;(d) His necessary clothing and articles for ordinary personal use, excluding jewelry;(e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos;(f) Provisions for individual or family use sufficient for four months;(g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value;(h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood;(i) So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the four months preceding the levy as are necessary for the support of his family;(j) Lettered gravestones;(k) Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance;(l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government;(m) Properties specially exempted by law.But no article or species of property mentioned in this section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon.B. Article 153, Family Code - The following are conjugal partnership property:(1) That which is acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses;(2) That which is obtained by the industry, or work, or as salary of the spouses, or of either of them;(3) The fruits, rents or interests received or due during the marriage, coming from the common property or from the exclusive property of each spouse.Article 157, Family Code -The right to an annuity, whether perpetual or of life, and the right of usufruct, belonging to one of the spouses shall form a part of his or her separate property, but the fruits, pensions and interests due during the marriage shall belong to the partnership.The usufruct which the spouses have over the property of their children, though of another marriage, shall be included in this provision.C. RULE 127 - Provisional Remedies in Criminal CasesSection 1. Availability of provisional remedies. The provisional remedies in civil actions, insofar as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action. (1a)Section 2. Attachment. When the civil action is properly instituted in the criminal action as provided in Rule 111, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in the following cases:(a) When the accused is about to abscond from the Philippines;(b) When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;(c) When the accused has concealed, removed, or disposed of his property, or is about to do so; anda) When the accused resides outside the Philippines.D. CASES:1. Paregrina v Panis G.R. No. 56011 (Oct. 31,1984)Respondent Court's assumption of jurisdiction, without prior conciliation proceedings between the parties in the Lupon Tagapayapa, is questioned in this Petition for certiorari and Prohibition with Preliminary Injunction. We issued a Temporary Restraining Order enjoining respondent Judge from taking further action in the case pending resolution of the controversy.The Complaint filed below by the SPOUSES Procopio and Carmelita Sanchez against PETITIONERS Elmer, Adelaida and Cecilia, all surnamed Peregrina, is a civil action for damages for alleged disrespect for the dignity, privacy and peace of mind of the SPOUSES under Article 26 of the Civil Code, and for alleged defamation under Article 33 of the same Code.Admittedly, the parties are actual residents of the same barangay in Olongapo City. In fact, they are neighbors. Unquestionably, too, no conciliation proceedings were filed before the Lupon. It is not surprising then that the Complaint is silent regarding compliance with the mandatory requirement, nor does it allege that the dispute falls within the excepted cases.PETITIONERS, as defendants below, moved for the dismissal of the Complaint. Before firing an Opposition, the SPOUSES applied for a Writ of Preliminary Attachment. Thereafter, the SPOUSES presented their Opposition claiming that, under Section 6(3) of P.D. No. 1508, the parties may go directly to the Courts if the action is coupled with a provisional remedy such as preliminary attachment.In resolving the Motion to Dismiss, respondent Judge at first, dismissed the Complaint for failure of the SPOUSES to comply with the pre-condition for amicable settlement under P.D. No. 1508, stating that the application for a provisional remedy was merely an afterthought. On motion for reconsideration by the SPOUSES, however, respondent Judge denied PETITIONERS' Motion to Dismiss on the ground that under Rule 57, Section 1 of the Rules of Court, the application for attachment can be made at the commencement of the action or any time thereafter. PETITIONERS now assail that Order of denial before us.We uphold PETITIONERS. Section 3 of P.D. No. 1508 specifically provides:t.hqwDisputes between or among persons actually respectively in the same barangay shall be brought for amicable settlement before the Lupon of said barangay. ...It is also mandated by Section 6 of the same law:SECTION 6. Conciliation, pre-condition to filing of complaint. No complaint, petition, action or proceeding involving any matter within the authority of the Lupon as provided. in Section 2 hereof shall be filed or instituted in court or any other government office for adjudication unless there has been a confrontation of the parties before the Lupon Chairman or the Pangkat and no conciliation or settlement has been reached as certified by the Lupon Secretary or the Pangkat Secretary, attested by the Lupon or Pangkat Chairman, or unless the settlement has been repudiated. ...Thus,Morata vs. Go, 125 SCRA 444 (1,,983), andVda. de Borromeo vs. Pogoy, 126 SCRA 217 (1983) have held that P.D. No. 1508 makes the conciliation process at the Barangay level a condition precedent for the filing of a complaint in Court. Non-compliance with that condition precedent could affect the sufficiency of the plaintiff's cause of action and make his complaint vulnerable to dismissal on the ground of lack of cause of action or prematurity.2The condition is analogous to exhaustion of administrative remedies,3or the lack of earnest efforts to compromise suits between family members,4lacking which the case can be dismissed.5The parties herein fall squarely within the ambit of P.D. No. 1508. They are actual residents in the same barangay and their dispute does not fall under any of the excepted cases.6It will have to be held, therefore, that respondent Judge erred in reconsidering his previous Order of dismissal on the ground that the provisional remedy of attachment was seasonably filed. Not only was the application for that remedy merely an afterthought to circumvent the law, but also, fundamentally, a Writ of Attachment is not available in a suit for damages where the amount, including moral damages, is contingent or unliquidated.7Prior referral to the Lupon for conciliation proceedings, therefore, was indubitably called for.WHEREFORE, respondent Judge's Order, dated November 17, 1980, is SET ASIDE, and the Complaint in Civil Case No. 2946-0 for damages is DISMISSED, without prejudice. The Temporary Restraining Order heretofore issued is hereby made permanent. No costs.

2. Carpio v Macadaeg 9 SCRA 552 (1963)Isabelo Carpio filed this petition forcertiorariand prohibition to annul and stop implementation of respondent Judge's orders of October 24 and November 25, 1960, directing the sale of five race horses and goods previously attached upon motion of respondent Oscar Abaya. We issued a writ of preliminary injunction to restrain the sale, with instructions to respondent Sheriff of Rizal to allow the daily training of the said horses and their participation in races whenever they were included in the racing programs.

On January 17, 1960 respondent Oscar Abaya filed a complaint against petitioner for the recovery of various sums aggregating P25,000 (Civil Case No. 42450, C.F.I. Manila). Before summons was served, and uponex partemotion of respondent Abaya (Annex B), respondent Judge issued two orders of attachment dated February 8 (Annex C-1) and February 10, 1960 (Annex C), pursuant to which the Sheriff of Manila garnished goods consisting of hardware imported by petitioner, and the Sheriff of Rizal seized petitioner's five racing horses named Mohamad, Mohamad's Pride, Magic Spell, Nashua and Sirius. On February 12, 1960 petitioner filed an urgent petition to discharge the orders of attachment (Annex 1). Acting thereon, respondent Judge, on March 11, 1960, set aside the two orders of February 8 and 10, 1960 (Annex F).

Upon two motions of respondent Abaya (Annexes H and 1), respondent Judge, on March 29, 1960, set aside his order of March 11, 1960 (Annex K). Though no new petition was filed for issuance of a writ of attachment and no new order or alias writ of attachment was issued, respondent Sheriff of Manila garnished the aforementioned goods and respondent Sheriff of Rizal attached the five racing horses.

Upon petition of respondent Abaya (Annex L), respondent Judge issued an order directing the sale at public auction of the five racing horses (Annex M). However, the sale was halted by petitioner's putting up a bond of P4,000 and the horses were released to him by respondent Sheriff of Rizal.

Upon motion of respondent Abaya (Annex R), respondent Judge, on October 24, 1960, ordered the increase of the bond to P10,000, and ordered respondent Sheriff of Rizal to proceed with the sale of the horses should petitioner failed to file the additional bond of P6,000 (Annex S). Motions filed by petitioner seeking reconsideration of the said order of October 24 were denied by respondent Judge on November 25, 1960 (Annex X). So, respondent Sheriff of Rizal advertised the sale at public auction of the five racing horses. Upon motion of respondent Abaya (Annex T), and despite the opposition of petitioner(Annex U), respondent Judge, on the same day November 25 issued an order authorizing the sale of the garnished goods (Annex Z).Petitioner seeks annulment of the order of October 24, 1960 ordering him to file an additional bond of P6,000; the order of November 25, 1960 denying his motion for reconsideration of the order of October 24; and the order of the same date authorizing the sale of the garnished goods, on the ground that in issuing them respondent Judge acted without jurisdiction and/or with grave abuse of discretion.

Respondent Judge should not have issued the two writs of preliminary attachment (Annexes C and C-1) on Abaya's simple allegation that the petitioner was about to dispose of his property, thereby leaving no security for the satisfaction of any judgment.[[1]]Mere removal or disposal of property, by itself, is not ground for issuance of preliminary attachment, notwithstanding absence of any security for the satisfaction of any judgment against the defendant. The removal or disposal, to justify preliminary attachment, must have been made with intent to defraud defendant's creditors.[[2]]

Respondent Judge in fact corrected himself. Acting on petitioner's motion to discharge attachment and apparently believing the correctness of the grounds alleged therein,[[3]]he set aside the orders of attachment (Order of March 11, 1960, Annex F).But reversing himself again, he set aside his order of March 11, 1960 (Annex K, dated March 29, 1960.[[4]]This he did apparently on Abaya's contention that petitioner was about to remove or dispose of his property in order to defraud his creditors, as examples of which disposals he pointed to the alleged sale of the horses and of petitioner's office furniture (Abaya's motion for reconsideration dated March 15, 1960, Annex H). These averments of fraudulent disposals were controverted by petitioner who, in his opposition to Abaya's motions for reconsideration (Annex J), reiterated the defenses against preliminary attachment which he had previously enumerated in his petition to discharge the two orders of attachment. Thus the question of fraudulent disposal was put in issue; and respondent Judge, before issuing the preliminary attachment anew, should have given the parties opportunity to prove their respective claims or, at the very least, should have provided petitioner with the chance to show that he had not been disposing of his property in fraud of creditors.[[5]]

But for much more than the above reason, respondent Judge should not have again ordered the issuance of the writ of preliminary attachment since Abaya never made any affidavit as required by Rule 59, Rules of Court, which states that:

SEC. 3.Order issued only when affidavit and bond filed An order of attachment shall be granted when it is made to appear by the affidavit of the plaintiff, or of some other person who personally knows the facts, that a sufficient cause of action exists, that the case is one of those mentioned in section 1 hereof, that there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due to the plaintiff, or the value of the property which he is entitled to recover the possession of, is as much as the sum for which the order is granted above all legal counterclaims; which affidavit, and the bond required by the next succeeding section, must be duly filed with the clerk or judge of the court before the order issues.

For the purposes of issuance of preliminary attachment, the affidavit (Annex B-1) attached to Abaya's motion therefor (Annex B), as we have said, is not sufficient, and it does not appear that he ever executed another affidavit that complies with the above section. None appears attached either to his motion for reconsideration dated March 15, 1960 (Annex H) or to his motion for reconsideration dated March 16, 1960 (Annex I), upon which the order of attachment (Annex K) was based.

Having construed that the preliminary attachment should not have been ordered, we believe it is no longer necessary to discuss the subsequent actuations of respondent Judge which were all based on the erroneous assumption that his order of March 29, 1960 was valid (Annex K).

WHEREFORE, the order of March 29, 1960 and all succeeding orders of respondent Judge with respect to said preliminary attachment, are hereby declared null and void; the attached properties are ordered released; and the preliminary injunction issued by this Court is made permanent. Costs against respondent Abaya.

3. Adlawan v Torres (July 5, 1994)

Facts: Petitioner Adlawan was indebted to Respondent company Aboitiz for construction projects the former was awarded with. However, due to inability to pay, Aboitiz filed for collection of sum of money against petitioner in the CFI of Cebu. It also moved for preliminary attachment on some of Adlawans properties after filing a bond.Aboitiz filed a notice of dismissal for the above mention case. When Adlawan moved for the enforcement of the dismissal, it was denied by the court on account of the filing by respondent Aboitiz an action or delivery of personal property before the CFI of Lapu-Lapu and petitioner Adlawans filing for damages in the same court for the seizure of his property by virtue of the preliminary attachment.Respondent Aboitiz alleged that the voluntary dismissal of the previous case was without prejudice to the institution of another action based on the same subject matter and that the issuance of the writ was justified because the petitioners were intending to defraud Aboitiz by mortgaging 11 parcels of land to PCIB thereby making PCIB a preferred creditor to the prejudice of Aboitiz.Issue: Was the writ of attachment legal or valid?Held: Negative. The affidavit submitted by Aboitiz in support of its prayer for the writ of attachment does NOT meet the requirements of Rule 57 of the Rules of Court regarding allegations on impending fraudulent removal, concealment and disposition of defendants property. To justify a preliminary attachment, the removal or disposal must have been made with intent to defraud defendants creditors.The factual basis must be alleged in the affidavit in support of the prayer for the writ of attachment if not so specifically alleged in the verified complaint. (See full text for the copy of the affidavit)The Supreme Court have found that there is no factual allegation which may constitute as a valid basis for the contention that the mortgage was in fraud of Aboitiz.The affidavit is the foundation of the writ and if none be filed or one be filed which wholly fails to set out some facts required by law to be stated therein, there is no jurisdiction and the proceedings are null and void.Bare allegation that an encumbrance of a property is in fraud of the creditor does NOT suffice. Factual bases for such conclusion must be clearly averred.By mortgaging a piece of property, a debtor merely subjects it to a lien but ownership thereof is not parted with.The Inability to pay ones creditors is no necessarily synonymous with fraudulent intent not to honor an obligation.When petitioners filed for reconsideration of the order directing the issuance of the writ, the respondent Judge Torres should have conducted a hearing or required a submission of counter-affidavit from the petitioners, if only to gather the facts in support of the alleged fraud.4. Aboitiz & Co. v Provincial Sheriff L-35990 (June 17, 1981)The instant petition stemmed from Civil Case No. 7329 of the Court of First Instance of Davao (Branch 1) in which a writ of preliminary attachment was issuedex-parteby the Court on the strength of an affidavit of merit attached to the verified complaint filed by petitioner herein, Aboitiz & Co., Inc., on November 2, 1971, as plaintiff in said case, for the collection of money in the sum of P 155,739.41, which defendant therein, the respondent in the instant case, Cotabato Bus Co., owed the said petitioner.By virtue of the writ of preliminary attachment, the provincial sheriff attached personal properties of the defendant bus company consisting of some buses, machinery and equipment. The ground for the issuance of the writ is, as alleged in the complaint and the affidavit of merit executed by the Assistant Manager of petitioner, that the defendant "has removed or disposed of its properties or assets, or is about to do so, with intent to defraud its creditors."Respondent company filed in the lower court an "Urgent Motion to Dissolve or Quash Writ of Attachment" to which was attached an affidavit executed by its Assistant Manager, Baldovino Lagbao, alleging among other things that "the Cotabato Bus Company has not been selling or disposing of its properties, neither does it intend to do so, much less to defraud its creditors; that also the Cotabato Bus Company, Inc. has been acquiring and buying more assets". An opposition and a supplemental opposition were filed to the urgent motion. The lower court denied the motion stating in its Order that "the testimony of Baldovino Lagbao, witness for the defendant, corroborates the facts in the plaintiff's affidavit instead of disproving or showing them to be untrue."A motion for reconsideration was filed by the defendant bus company but the lower court denied it. Hence, the defendant went to the Court of Appeals on a petition for certiorari alleging grave abuse of discretion on the part of herein respondent Judge, Hon. Vicente R. Cusi Jr. On giving due course to the petition, the Court of Appeals issued a restraining order restraining the trial court from enforcing further the writ of attachment and from proceeding with the hearing of Civil Case No. 7329. In its decision promulgated on October 3, 1971, the Court of Appeals declared "null and void the order/writ of attachment dated November 3, 1971 and the orders of December 2, 1971, as well as that of December 11, 1971, ordered the release of the attached properties, and made the restraining order originally issued permanent.The present recourse is an appeal by certiorari from the decision of the Court of Appeals reversing the assailed orders of the Court of First Instance of Davao, (Branch I), petitioner assigning against the lower court the following errors:ERROR ITHE COURT OF APPEALS ERRED IN HASTILY AND PERFUNCTORILY RENDERING, ON OCTOBER 3, 1971, A DECISION WITHOUT CONSIDERING MOST OF THE EVIDENCE SUCH THAT l) EVEN AN IMPORTANT FACT, ESTABLISHED BY DOCUMENTARY EVIDENCE AND NOT DENIED BY RESPONDENT, IS MENTIONED ONLY AS A "CLAIM" OF PETITIONER COMPANY;2) THE DECISION CONTAINS NO DISCUSSION AND APPRECIATION OF THE FACTS AS PROVED, ASSEMBLED AND PRESENTED BY PETITIONER COMPANY SHOWING IN THEIR TOTALITY THAT RESPONDENT HAS REMOVED, DIVERTED OR DISPOSED OF ITS BANK DEPOSITS, INCOME AND OTHER LIQUID ASSETS WITH INTENT TO DEFRAUD ITS CREDITORS, ESPECIALLY ITS UNSECURED SUPPLIERS;3) THE DECISION IGNORES THE SIGNIFICANCE OF THE REFUSAL OF RESPONDENT TO PERMIT, UNDER REP. ACT NO. 1405, THE METROPOLITAN BANK & TRUST CO. TO BRING, IN COMPLIANCE WITH A subpoena DUCES TECUM TO THE TRIAL COURT ALL THE RECORDS OF RESPONDENT'S DEPOSITS AND WITHDRAWALS UNDER ITS CURRENT AND SAVINGS ACCOUNTS (NOW NIL) FOR EXAMINATION BY PETITIONER COMPANY FOR THE PURPOSE OF SHOWING DIRECTLY THE REMOVAL, DIVERSION OR DISPOSAL OF RESPONDENT'S DEPOSITS AND INCOME WITH INTENT TO DEFRAUD ITS CREDITORS.ERROR IITHE COURT OF APPEALS ERRED IN NOT APPRECIATING THE FACTS THAT RESPONDENT'S BANK DEPOSITS ARE NIL AS PROOF WHICH - TOGETHER WITH RESPONDENT'S ADMISSION OF AN INCOME OF FROM P10,000.00 to P 14,000.00 A DAY AND THE EVIDENCE THAT IT CANNOT PRODUCE P 634.00 WITHOUT USING A PERSONAL CHECK OF ITS PRESIDENT AND MAJORITY STOCKHOLDER, AND OTHER EVIDENCE SHOWS THE REMOVAL OR CHANNELING OF ITS INCOME TO THE LATTER.ERROR IIITHE COURT OF APPEALS ERRED IN NOT APPRECIATING THE RESCUE AND REMOVAL BY RESPONDENT OF FIVE ATTACHED BUSES, DURING THE DEPENDENCY OF ITS MOTION TO DISSOLVE THE ATTACHMENT IN THE, TRIAL COURT, AS A FURTHER ACT OF REMOVAL OF PROPERTIES BY RESPONDENT WITH INTENT TO DEFRAUD PETITIONER COMPANY, FOR WHOSE BENEFIT SAID BUSES HAD BEEN ATTACHED.The questions raised are mainly, if not solely, factual revolving on whether respondent bus company has in fact removed its properties, or is about to do so, in fraud of its creditors. This being so, the findings of the Court of Appeals on said issues of facts are generally considered conclusive and final, and should no longer be disturbed. However, We gave due course to the petition because it raises also a legal question of whether the writ of attachment was properly issued upon a showing that defendant is on the verge of insolvency and may no longer satisfy its just debts without issuing the writ. This may be inferred from the emphasis laid by petitioner on the fact that even for the measly amount of P 634.00 payment thereof was made with a personal check of the respondent company's president and majority stockholder, and its debts to several creditors, including secured ones like the DBP, have remained unpaid, despite its supposed daily income of an average of P 12,000.00, as declared by its assistant manager, Baldovino Lagbao.Going forthwith to this question of whether insolvency, which petitioners in effect claims to have been proven by the evidence, particularly by company's bank account which has been reduced to nil, may be a ground for the issuance of a writ of attachment, the respondent Court of Appeals correctly took its position in the negative on the strength of the explicit ruling of this Court inMax Chamorro & Co. vs. Philippine Ready Mix Concrete Company, Inc. and Hon. Manuel P. Barcelona.Petitioner, however, disclaims any intention of advancing the theory that insolvency is a ground for the issuance of a writ of attachment ,3and insists that its evidence -is intended to prove his assertion that respondent company has disposed, or is about to dispose, of its properties, in fraud of its creditors. Aside from the reference petitioner had made to respondent company's "nil" bank account, as if to show removal of company's funds, petitioner also cited the alleged non-payment of its other creditors, including secured creditors like the DBP to which all its buses have been mortgaged, despite its daily income averaging P12,000.00, and the rescue and removal of five attached buses.It is an undisputed fact that, as averred by petitioner itself, the several buses attached are nearly junks. However, upon permission by the sheriff, five of them were repaired, but they were substituted with five buses which were also in the same condition as the five repaired ones before the repair. This cannot be the removal intended as ground for the issuance of a writ of attachment under section 1 (e), Rule 57, of the Rules of Court. The repair of the five buses was evidently motivated by a desire to serve the interest of the riding public, clearly not to defraud its creditors, as there is no showing that they were not put on the run after their repairs, as was the obvious purpose of their substitution to be placed in running condition.Moreover, as the buses were mortgaged to the DBP, their removal or disposal as alleged by petitioner to provide the basis for its prayer for the issuance of a writ of attachment should be very remote, if not nil. If removal of the buses had in fact been committed, which seems to exist only in petitioner's apprehensive imagination, the DBP should not have failed to take proper court action, both civil and criminal, which apparently has not been done.The dwindling of respondent's bank account despite its daily income of from P10,000.00 to P14,000.00 is easily explained by its having to meet heavy operating expenses, which include salaries and wages of employees and workers. If, indeed the income of the company were sufficiently profitable, it should not allow its buses to fall into disuse by lack of repairs. It should also maintain a good credit standing with its suppliers of equipment, and other needs of the company to keep its business a going concern. Petitioner is only one of the suppliers.It is, indeed, extremely hard to remove the buses, machinery and other equipments which respondent company have to own and keep to be able to engage and continue in the operation of its transportation business. The sale or other form of disposition of any of this kind of property is not difficult of detection or discovery, and strangely, petitioner, has adduced no proof of any sale or transfer of any of them, which should have been easily obtainable.In the main, therefore, We find that the respondent Court of Appeals has not committed any reversible error, much less grave abuse of discretion, except that the restraining order issued by it should not have included restraining the trial court from hearing the case, altogether. Accordingly, the instant petition is hereby denied, but the trial court is hereby ordered to immediately proceed with the hearing of Civil Case No. 7329 and decide it in accordance with the law and the evidence. No special pronouncement as to costs.5. Filinvest Credit Corp. v Relova G.R. No. 50378 (Sept. 30, 1982)This is a special civil action for certiorari, with prayer for restraining order or preliminary injunction, filed by petitioner Filinvest Credit Corporation seeking to annul the Orders issued by respondent Judge dated February 2, 1979 and April 4, 1979 in Civil Case No. 109900.As shown by the records, the antecedents of the instant Petition are as follows:On August 2, 1977, Filinvest Credit Corporation (hereinafter referred to as FILINVEST) filed a complaint in the lower court against defendants Rallye Motor Co., Inc. (hereinafter referred to as RALLYE) and Emesto Salazar for the collection of a sum of money with damages and preliminary writ of attachment. From the allegations of the complaint,1it appears that in payment of a motor vehicle described as: "One (1) Unit MAZDA DIESEL SCHOOL BUS, Model: E4100, Serial No.: EXC43P-02356, Motor No.: Y-13676," Salazar executed a promissory note dated May 5, 1977 in favor of RALLYE for the amount of P99,828.00. To secure the note, Salazar also executed in favor of RALLYE a deed of chattel mortgage over the above described motor vehicle. On May 7, 1977, RALLYE, for valuable consideration, assigned all its rights, title and interest to the aforementioned note and mortgage to FILINVEST. Thereafter, FILINVEST came to know that RALLYE had not delivered the motor vehicle subject of the chattel mortgage to Salazar, "as the said vehicle (had) been the subject of a sales agreement between the codefendants." Salazar defaulted in complying with the terms and conditions of the aforesaid promissory note and chattel mortgage. RALLYE, as assignor who guaranteed the validity of the obligation, also failed and refused to pay FILINVEST despite demand. According to FILINVEST, the defendants intentionally, fraudulently and with malice concealed from it the fact that there was no vehicle delivered under the documents negotiated and assigned to it, otherwise, it would not have accepted the negotiation and assignment of the rights and interest covered by the promissory note and chattel mortgage. Praying for a writ of preliminary attachment, FILINVEST submitted with its complaint the affidavit of one Gil Mananghaya, pertinent portions of which read thus:That he is the Collection Manager, Automotive Division of Filinvest Credit Corporation;That in the performance of his duties, he came to know of the account of Ernesto Salazar, which is covered by a Promissory Note and secured by a Chattel Mortgage, which documents together with all the rights and interest thereto were assigned by Rallye Motor Co., Inc.;That for failure to pay a stipulated installment, and the fact that the principal debtor, Ernesto Salazar, and the assignor, Rallye Motor Co., Inc. concealed the fact that there was really no motor vehicle mortgaged under the terms of the Promissory Note and the Chattel Mortgage, the entire amount of the obligation stated in the Promissory Note becomes due and demandable, which Ernesto Salazar and Rallye Motor Co., Inc. failed and refused to pay, so much so that a sufficient cause of action really exists for Filinvest Credit Corporation to institute the corresponding complaint against said person and entity;That the case is one of those mentioned in Section 1, Rule 57 of his Rules of Court, particularly an action against parties who have been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought;That there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due to the applicant Filinvest Credit Corporation is as much as the sum for which the order is granted above all legal counterclaims;That this affidavit is executed for the purpose of securing a writ of attachment from the court.2The specific provision adverted to in the above Affidavit is Section 1(d) of Rule 57 which includes "an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought, or in concealing or disposing of the property for the taking, detention or conversion of which the action is brought" as one of the cases in which a "plaintiff or any proper party may, at the commencement of the action or at any time thereafter, have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered."Judge Jorge R. Coquia (now Justice of the Court of Appeals), then presiding Judge of the lower court, granted the prayer for a writ of attachment in an Order dated August 17, 1977 stating that:Finding the complaint sufficient in form and substance, and in view of the sworn statement of Gil Mananghaya, Collection Manager of the plaintiff that defendants have committed fraud in securing the obligation and are now avoiding payment of the same, let a writ of attachment issue upon the plaintiff's filing of a bond in the sum of P97,000.00.In the meantime, let summons issue on the defendants.3More than a year later, in an Urgent Motion dated December 11, 1978,4defendant Salazar prayed that the writ of preliminary attachment issued ex parte and implemented solely against his property be recalled and/or quashed. He argued that when he signed the promissory note and chattel mortgage on May 5, 1977 in favor of RALLYE, FILINVEST was hot vet his creditor or obligee, therefore, he could not be said to have committed fraud when he contracted the obligation on May 5, 1977. Salazar added that as the motor vehicle which was the object of the chattel mortgage and the consideration for the promissory note had admittedly not been delivered to him by RALLYE, his repudiation of the loan and mortgage is more justifiable.FILINVEST filed an Opposition, but on February 2, 1979, the courta quo, this time presided over by herein respondent Judge, ordered the dissolution and setting aside of the writ of preliminary attachment issued on August 17, 1977 and the return to defendant Salazar of all his properties attached by the Sheriff by virtue of the said writ. In this Order, respondent Judge explained that:When the incident was called for hearing, the Court announced that, as a matter of procedure, when a motion to quash a writ of preliminary attachment is filed, it is incumbent upon the plaintiff to prove the truth of the allegations which were the basis for the issuance of said writ. In this hearing, counsel for the plaintiff manifested that he was not going to present evidence in support of the allegation of fraud. He maintained that it should be the defendant who should prove the truth of his allegation in the motion to dissolve the said writ. The Court disagrees.5FILINVEST filed a Motion for Reconsideration of the above Order, and was subsequently allowed to adduce evidence to prove that Salazar committed fraud as alleged in the affidavit of Gil Mananghaya earlier quoted. This notwithstanding, respondent Judge denied the Motion in an Order dated April 4, 1979 reasoning thus:The plaintiff's evidence show that the defendant Rallye Motor assigned to the former defendant Salazar's promissory note and chattel mortgage by virtue of which plaintiff discounted the note. Defendant Salazar refused to pay the plaintiff for the reason that Rallye Motor has not delivered to Salazar the motor vehicle which he bought from Rallye. It is the position of plaintiff that defendant Salazar was in conspiracy with Rallye Motor in defrauding plaintiff.Ernesto Salazar, on his part complained that he was himself defrauded, because while he signed a promissory note and chattel mortgage over the motor vehicle which he bought from Rallye Motor, Rallye Motor did not deliver to him the personal property he bought; that the address and existence of Rallye Motor can no longer be found.While it is true that the plaintiff may have been defrauded in this transaction, it having paid Rallye Motor the amount of the promissory note, there is no evidence that Ernesto Salazar had connived or in any way conspired with Rallye Motor in the assignment of the promissory note to the plaintiff, because of which the plaintiff paid Rallye Motor the amount of the promissory note. Defendant Ernesto Salazar was himself a victim of fraud. Rallye Motor was the only party which committed it.6From the above order denying reconsideration and ordering the sheriff to return to Salazar the personal property attached by virtue of the writ of preliminary attachment issued on August 17, 1977, FILINVEST filed the instant Petition on April 19, 1979. On July 16, 1979, petitioner FILINVEST also filed an Urgent Petition for Restraining Order7alleging, among others, that pending this certiorari proceeding in this court, private respondent Salazar filed a Motion for Contempt of Court in the court below directed against FILINVEST and four other persons allegedly for their failure to obey the Order of respondent Judge dated April 4, 1979, which Order is the subject of this Petition. On July 23, 1979, this Court issued a temporary restraining order "enjoining respondent Judge or any person or persons acting in his behalf from hearing private respondent's motion for contempt in Civil Case No. 109900, entitled, 'Filinvest Credit Corporation, Plaintiff, versus The Rallye Motor Co., Inc., et al., Defendants' of the Court of First Instance of Manila, Branch XI. "8Petitioner FILINVEST in its MEMORANDUM contends that respondent Judge erred:(1) In dissolving the writ of preliminary attachment already enforced by the Sheriff of Manila without Salazar's posting a counter-replevin bond as required by Rule 57, Section 12; and(2) In finding that there was no fraud on the part of Salazar, despite evidence in abundance to show the fraud perpetrated by Salazar at the very inception of the contract.It is urged in petitioner's first assignment of error that the writ of preliminary attachment having been validly and properly issued by the lower court on August 17, 1977, the same may only be dissolved, quashed or recalled by the posting of a counter-replevin bond under Section 12, Rule 57 of the Revised Rules of Court which provides that:Section 12.Discharge of Attachment upon, gluing counterbond.At any time after an order of attachment has been granted, the party whose property has been attached, or the person appearing on his behalf, may, upon reasonable notice to the applicant, apply to the judge who granted the order, or to the judge of the court, in which the action is pending, for an order discharging the attachment wholly or in part on the security given. The judge shall, after hearing, order the discharge of the attachment if a cash deposit is made, or a counter-bond executed to the attaching creditor is filed, on behalf of the adverse party, with the clerk or judge of the court where the application is made, in an amount equal to the value of the property attached as determined by the judge, to secure the payment of any judgment that the attaching creditor may recover in the action. ...Citing the above provision, petitioner contends that the court below should not have issued the Orders dated February 2, 1979 and April 4, 1979 for failure of private respondent Salazar to make a cash deposit or to file a counter-bond.On the other hand, private respondent counters that the subject writ of preliminary attachment was improperly or irregularly issued in the first place, in that it was issuedex partewithout notice to him and without hearing.We do not agree with the contention of private respondent. Nothing in the Rules of Court makes notice and hearing indispensable and mandatory requisites for the issuance of a writ of attachment. The statement in the case ofBlue Green Waters, Inc. vs. Hon. Sundiam and Tan9cited by private respondent, to the effect that the order of attachment issued without notice to therein petitioner Blue Green Waters, Inc. and without giving it a chance to prove that it was not fraudulently disposing of its properties is irregular, gives the wrong implication. As clarified in the separate opinion of Mr. Justice Claudio Teehankee in the same cited case,10a writ of attachment may be issuedex parte. Sections 3 and 4, Rule 57, merely require that an applicant for an order of attachment file an affidavit and a bond: theaffidavitto be executed by the applicant himself or some other person who personally knows the facts and to show that (1) there is a sufficient cause of action, (2) the case is one of those mentioned in Section 1 of Rule 57, (3) there is no other sufficient security for the claim sought to be enforced, and (4) the amount claimed in the action is as much as the sum for which the order is granted above all legal counterclaims;andthebondto be "executed to the adverse party in an amount fixed by the judge, not exceeding the applicant's claim, 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."We agree, however, with private respondents contention that a writ of attachment may be discharged without the necessity of filing the cash deposit or counter-bond required by Section 12, Rule 57, cited by petitioner. The following provision of the same Rule allows it:Sec. 13. Discharge of attachment for improper or irregular issuance.The party whose property has been attached may also, at any time either before or after the release of the attached property, or before any attachment shall have been actually levied, upon reasonable notice to the attaching creditor, apply to the judge who granted the order, or to the judge of the court in which the action is pending, for an order todischarge the attachment on the ground that the same was improperly or irregularly issued. If the motion be made on affidavits on the part of the party whose property has been attached, but not otherwise, the attaching creditor may oppose the same by counter-affidavits or other evidence in addition to that on which the attachment was made. After hearing, the judge shall order the discharge of the attachment if it appears that it was improperly or irregularly issued and the defect is not cured forthwith."(Emphasis supplied)The foregoing provision grants an aggrieved party relief from baseless and unjustifiable attachments procured, among others, upon false allegations, without having to file any cash deposit or counter-bond. In the instant case the order of attachment was granted upon the allegation of petitioner, as plaintiff in the court below, that private respondent RALLYE, the defendants, had committed "fraudin contracting the debt or incurring the obligation upon which the action is brought," covered by Section i(d), Rule 57, earlier quoted. Subsequent to the issuance of the attachment order on August 17, 1977, private respondent filed in the lower court an "Urgent Motion for the Recall and Quashal of the Writ of Preliminary Attachment on (his property)" dated December 11, 197811precisely upon the assertion that there was "absolutelyno fraudon (his) part" in contracting the obligation sued upon by petitioner. Private respondent was in effect claiming that petitioner's allegation of fraud was false, that hence there was no ground for attachment, and that therefore the attachment order was "improperly or irregularly issued." This Court was held that "(i)f the grounds upon which the attachment was issued were not true ..., the defendant has his remedy by immediately presenting a motion for the dissolution of the same.12We find that private respondent's abovementioned Urgent Motion was filed under option 13, Rule 57.The last sentence of the said provision, however, indicates that ahearingmust be conducted by the judge for the purpose of determining whether or not there reality was a defect in the issuance of the attachment. The question is: At this hearing, on whom does the burden of proof lie? Under the circumstances of the present case, We sustain the ruling of the courta quoin its questioned Order dated February 2, 1979 that it should be the plaintiff (attaching creditor), who should prove his allegation of fraud. This pronouncement finds support in the first sentence of Section 1, Rule 131, which states that: "Each party must prove his own affirmative allegations." The last part of the same provision also provides that: "The burden of proof lies on the party who would be defeated if no evidence were given on either side." It must be brne in mind that in this jurisdiction, fraud is never presumed. FRAUS EST IdIOS ET NON PRAESUMENDA.13Indeed, private transactions are presumed to have been fair and regular.14Likewise, written contracts such as the documents executed by the parties in the instant case, are presumed to have been entered into for a sufficient consideration.15In a similar case ofVillongco, et al., vs. Hon. Panlilio, et al.,16a writ of preliminary attachment was issued ex parte in a case for damages on the strength of the affidavit of therein petitioners to the effect that therein respondents had concealed, removed or disposed of their properties, credits or accounts collectible to defraud their creditors. Subsequently, the lower court dissolved the writ of attachment. This was questioned in a certiorari proceeding wherein this Court held, inter alia, that:The affidavit supporting the petition for the issuance of the preliminary attachment may have been sufficient to justify the issuance of the preliminary writ, but it cannot be considered as proof of the allegations contained in the affidavit. The reason is obvious. The allegations are mere conclusions of law, not statement of facts. No acts of the defendants are ever mentioned in the affidavit to show or prove the supposed concealment to defraud creditors. Said allegations are affirmative allegations, which plaintiffs had the obligation to prove ...17It appears from the records that both herein private parties did in fact adduce evidence to support their respective claims.18Attached to the instant Petition as its Annex "H"19is a Memorandum filed by herein petitioner FILINVEST in the court below on March 20, 1979. After private respondent filed his Comment to the Petition,20petitioner filed a Reply21,attaching another copy of the aforesaid Memorandum as Annex "A"22In this case on February 28, 1979 and March 1, 1979, the plaintiff (FILINVEST) presented in evidence documentary exhibits "marked Exhibit A, A- I, B, B-1, B-2, B-3, B-4, C, C-1, D, E, F, G and G-1. The Memorandum goes on to state that FILINVEST presented as its witness defendant Salazar himself who testified that he signed Exhibits A, B, C, D, E and G; that he is a holder of a master's degree in Business Administration and is himself a very careful and prudent person; that he does not sign post-dated documents; that he does not sign contracts which do not reflect the truth or which are irregular on their face, that he intended to purchase a school bus from Rallye Motors Co., Inc. from whom he had already acquired one unit; that he had been dealing with Abel Sahagun, manager of RALLYE, whom he had known for a long time that he intended to purchase the school bus on installment basis so he applied for financing with the FILINVEST; that he knew his application was approved; that with his experience as a business executive, he knew that under a financing arrangement, upon approval of his application, when he signed Exhibits A, B, C, D, E and G, the financing company (FILINVEST) would release the proceeds of the loan to RALLYE and that he would be obligated to pay the installments to FILINVEST; that he signed Exhibits A, B and C simultaneously; that it was his wife who was always transacting business with RALLYE and Abel Sahagun.23Without disputing the above summary of evidence, private respondent Salazar states in his Comment that "the same evidence proferred by (petitioner's) counsel was adopted by (private respondent) Ernesto Salazar during the proceedings.24According to the court a quo in its assailed order of April 4, 1979, Emesto Salazar "was himself defrauded because while he signed the promissory note and the chattel mortgage over the vehicle which he bought from Rallye Motors, RALLYE did not deliver to him the personal property he bought." And since no fraud was committed by Salazar, the court accordingly ordered the sheriff to return to Salazar the properties attached by virtue of the writ of preliminary attachment issued on August 17, 1977.We do not agree. Considering the claim of respondent Salazar that Rallye Motors did not deliver the motor vehicle to him, it follows that the Invoice, Exhibit "C", for the motor vehicle and the Receipt, Exhibit "G", for its delivery and both signed by Salazar, Exhibits "C-1 " and "G-1", were fictitious. It also follows that the Promissory Note, Exhibit "A", to pay the price of the undelivered vehicle was without consideration and therefore fake; the Chattel Mortgage, Exhibit "B", over the non-existent vehicle was likewise a fraud; the registration of the vehicle in the name of Salazar was a falsity and the assignment of the promissory note by RALLYE with the conforme of respondent Salazar in favor of petitioner over the undelivered motor vehicle was fraudulent and a falsification.Respondent Salazar, knowing that no motor vehicle was delivered to him by RALLYE, executed and committed all the above acts as shown the exhibits enumerated above. He agreed and consented to the assignment by RALLYE of the fictitious promissory note and the fraudulent chattel mortgage, affixing his signature thereto, in favor of petitioner FILINVEST who, in the ordinary course of business, relied on the regularity and validity of the transaction. Respondent had previously applied for financing assistance from petitioner FILINVEST as shown in Exhibits "E " and "E-1 " and his application was approved, thus he negotiated for the acquisition of the motor vehicle in question from Rallye Motors. Since he claimed that the motor vehicle was not delivered to him, then he was duty-bound to reveal that to FILINVEST, it being material in inducing the latter to accept the assignment of the promissory note and the chattel mortgage. More than that, good faith as well as commercial usages or customs require the disclosure of facts and circumstances which go into the very object and consideration of the contractual obligation. We rule that the failure of respondent Salazar to disclose the material fact of non-delivery of the motor vehicle, there being a duty on his part to reveal them, constitutes fraud. (Article 1339, New Civil Code).We hold that the courta quocommitted grave abuse of discretion in dissolving and setting aside the writ of preliminary attachment issued on August 17, 1977.WHEREFORE, IN VIEW OF THE FOREGOING, the appealed Orders of the lower court dated February 2, 1979 and April 4, 1979 are hereby REVERSED and SET ASIDE. The temporary restraining order issued by Us on July 23, 1979 is hereby made permanent. No costs.6. Davao Light and Power v Court of Appeals (Nov. 29, 1991)

Facts:Davao Light and Power Inc, Co. filed a complaint for recovery of sum of money and damages against Queensland Hotel and Teodorico Adarna. The complaint contained an ex parte application for a writ of preliminary attachment.

Judge Nartatez granted the writ and fixed the attachment bond at around P4Million. The summons, copy of complaint, writ of attachment, copy of attachment bond were served upon Queensland and Adarna. Pursuant to the writ, the Sheriff seized the properties of the latter.

Queensland and Adarna filed a motion to discharge the attachment for lack of jurisdiction to issue the same because at the time the order of attachment was promulgated (May 3, 1989) and the attachment writ issued (May 11,1989), the Trial Court had not yet acquired jurisdiction over cause and person of defendants.

Trial Court denied the motion to discharge.

CA annulled the Trial Courts Order. Davao seeks to reverse CAs order.

Issue:Whether or not preliminary attachment may issue ex parte against a defendant before acquiring jurisdiction over his person.

Held:Yes.Rule 57 speaks of the grant of the remedy at the commencement of the action or at any time thereafter What the rule is saying is that after an action is properly commenced (by filing of the complaint and payment of all requisite docket and other fees), the plaintiff may apply for and obtain a writ of preliminary attachment. This he may do so, before or after, the summons to the defendant.

The CA decision is reversed and the writ of attachment issued by Judge Nartatez is reinstated.

**Preliminary Attachment provisional remedy in virtue of which a plaintiff or other party may, at the commencement of the action or at any time thereafter, have the property of the adverse party taken into custody of court as security for satisfaction of judgment to be recovered.

Nature of Attachment: a remedy which is purely statutory in respect of which the law requires a strict of construction of the provisions granting it. No principle, whether statutory or through jurisprudence, prohibits its issuance by any court before the acquisition of jurisdiction over the person.

7. Onate v Abrogar G.R. NO. 107491 (Feb. 23, 1995)

These are motions separately filed by petitioners, seeking reconsideration of the decision of the Second Division holding that although the levy on attachment of petitioners' properties had been made before the trial court acquired jurisdiction over them, the subsequent service of summons on them cured the invalidity of the attachment.The motions were referred to the Courten bancin view of the fact that in another decision rendered by the Third Division on the same question, it was held that the subsequent acquisition of jurisdiction over the person of a defendant does not render valid the previous attachment of his property.1The Courten bancaccepted the referral and now issues this resolution.Petitioners maintain that, in accordance with prior decisions of this Court, the attachment of their properties was void because the trial court had not at that time acquired jurisdiction over them and that the subsequent service of summons on them did not cure the invalidity of the levy. They further contend that the examination of the books and ledgers of the Bank of the Philippine Islands (BPI), the Philippine National Bank (PNB) and the Urban Bank was a "fishing expedition" which the trial court should not have authorized because petitioner Emmanuel C. Oate, whose accounts were examined, was not a signatory to any of the documents evidencing the transaction between Sun Life Assurance of Canada (Sun Life) and Brunner Development Corporation (Brunner).On the other hand private respondent Sun Life stresses the fact that the trial courteventuallyacquired jurisdiction over petitioners and contends that this cured the invalidity of the attachment of petitioners' properties. With respect to the second contention of petitioners, private respondent argues that the examination of petitioner Oate's bank account was justified because it was he who signed checks transferring huge amounts from Brunner's account in the Urban Bank to the PNB and the BPI.IAt the outset, it should be stated that the Court does not in the least doubt the validity of the writ of attachment issued in these cases. The fact that a criminal complaint for estafa which Sun Life had filed against petitioner Oate and Noel L. Dio, president of Brunner, was dismissed by the Office of the Provincial Prosecutor is immaterial to the resolution of the motions for reconsideration. In the first place, the dismissal, although later affirmed by the Department of Justice, is pending reconsideration. In the second place, since the issue in the case below is precisely whether petitioners were guilty of fraud in contracting their obligation, resolution of the question must await the trial of the main case.However, we find petitioners' contention respecting the validity of the attachment of their properties to be well taken. We hold that the attachment of petitioners' properties prior to the acquisition of jurisdiction by the respondent court is void and that the subsequent service of summons on petitioners did not cure the invalidity of such attachment. The records show that before the summons and the complaint were served on petitioners Oate and Econ Holdings Corporation (Econ) on January 9, 1992, Deputy Sheriff Arturo C. Flores had already served on January 3, 1992 notices of garnishment on the PNB Head office2and on all its Metro Manila branches and an A.B capital.3In addition he made other levies before the service of summons on petitioners, to wit: On January 6, 1992, he served notices of garnishment on the Urban Bank Head Office and all its Metro Manila branches,4and on the BPI.5 On the same day, he levied on attachment Oate's condominium unit at the Amorsolo Apartments Condominium Project, covered by Condominium Certificate of Title No. S-1758.6 On January 7, 1992, he served notice of garnishment on the Union Bank of the Philippines.7 On January 8, 1992, he attached Oate's lot, consisting of 1,256 square meters, at the Ayala-Alabang Subdivision, Alabang, Muntinlupa, covered by TCT No. 112673.8First. The Deputy Sheriff claims that he had tried to serve the summons with a copy of the complaint on petitioners on January 3, 1992 but that there was no one in the offices of petitioners on whom he could make a service. This is denied by petitioners who claim that their office was always open and that Adeliza M. Jaranilla, Econ's Chief Accountant who eventually received summons on behalf of Oate and Econ, was present that day. Whatever the truth is, the fact is that no other attempt was made by the sheriff to serve the summons except onJanuary 9, 1992, in the case of Oate and Econ, and onJanuary 16, 1992, in the case of Dio. Meantime, he made several levies, which indicates a predisposition to serve the writ of attachment in anticipation of theeventualacquisition by the court of jurisdiction over petitioners.Second. Private respondent invokes the ruling inDavao Light & Power Co.v.Court of Appeals9in support of its contention that the subsequent acquisition of jurisdiction by the court cured the defect in the proceedings for attachment. It cites the following portion of the decision inDavao Light and Power, written by Justice, now Chief Justice, Narvasa:It goes without saying that whatever be the acts done by the Court prior to the acquisition of jurisdiction over the person of the defendant, as above indicated issuance of summons, order of attachment and writ of attachment (and/or appointment of guardianad litem, or grant of authority to the plaintiff to prosecute the suit as a pauper litigant, or amendment of the complaint by the plaintiff as a matter of right without leave of court and however valid and proper they might otherwise be, these do not and cannot bind and affect the defendant until and unless jurisdiction over his person iseventuallyobtained by the court, either by service on him of summons or other coercive process or his voluntary submission to the court's authority. Hence,when the sheriff or other proper officer commences implementation of the writ of attachment, it is essential that he serve on the defendant not only a copy of the applicant's affidavit and attachment bond, and of the order of attachment, as explicitly required by Section 5 of Rule 57, but also the summons addressed to said defendant as well as a copy of the complaint and order for appointment of guardianad litem, if any, as also explicitly directed by Section 3, Rule 14 of the Rules ofCourt.10It is clear from the above excerpt, however, that while the petition for a writ of preliminary attachment may begrantedand the writ itselfissuedbefore the defendant is summoned, the writ of attachment cannot beimplementeduntil jurisdiction over the person of the defendant is obtained. As this Court explained, "levy on property pursuant to the writ thus issued may not be validly effected unless preceded, orcontemporaneouslyaccompanied, by service on the defendant of summons, a copy of the complaint (and of the appointment of guardianad litem, if any), the application for attachment (if not incorporated in but submitted separately from the complaint), the order of attachment, and the plaintiff's attachment bond."11Further clarification on this point was made inCuartero v.Court of Appeals,12in which it was held:It must be emphasized that the grant of the provisional remedy of attachment practically involves three stages; first, the court issues the order granting the application; second, the writ of attachment issues pursuant to the order granting the writ; and third, the writ is implemented. For the initial two stages, it is not necessary that jurisdiction over the person of the defendant should first be obtained. 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.Private respondent argues that the case ofCuarteroitself provides for an exception as shown in the statement that "the court [in issuing the writ of preliminary attachment] cannot bind and affect the defendant until jurisdiction iseventuallyobtained" and that since petitioners were subsequently served with summons, no question can be raised against the validity of the attachment of petitioners' properties before such service.The statement in question has been taken out of context. The full statement reads:It is clear from our pronouncements that a writ of preliminary attachment may issue even before summons is served upon the defendant. However, we have likewise ruled that the writ cannot bind and affect the defendant until jurisdiction over his person is eventually obtained.Therefore, it is required that when proper officer commences implementation of the writ of attachment service of summons should be simultaneously made.13Indeed, as this Court through its First Division has ruled on facts similar to those in these cases, the attachment of properties before the service of summons on the defendant is invalid, even though the court later acquires jurisdiction over the defendant.14At the very least, then, the writ of attachment must be servedsimultaneouslywith the service of summons before the writ may be enforced. As the properties of the petitioners were attached by the sheriff before he had served the summons on them, the levies made must be considered void.Third. Nor can the attachment of petitioners' properties before the service of summons on them was made be justified an the ground that unless the writ was then enforced, petitioners would be alerted and might dispose of their properties before summons could be served on them.The Rules of Court do not require that issuance of the writ be kept a secret until it can be enforced. Otherwise in no case may the service of summons on the defendant precede the levy on attachment. To the contrary, Rule 57, 13 allows the defendant to move to discharge the attachment even before any attachment is actually levied upon, thus negating any inference that before its enforcement, the issuance of the writ must be kept secret. Rule 57, 13 provides:Sec. 13. Discharge of attachment for improper or irregular issuance. The party whose property has been attached may also, at any time either before or after the release of the attached property, orbefore any attachment shall have been actually levied, upon reasonable notice to the attaching creditor, apply to the judge who granted the order, or to the judge of the court in which the action is pending, for an order to discharge the attachment on the ground that the same was improperly or irregularly issued. . . . (Emphasis added).As this Court pointed out inDavao Light and Power,15the lifting of an attachment "may be resortedto even before any property has been levied on."It is indeed true that proceedings for the issuance of a writ of attachment are generallyex parte. InMindanao Savings and Loans Ass'n v.Court of Appeals16it was held that no hearing is required for the issuance of a writ of attachment because this "would defeat the objective of the remedy [because] the time which such hearing would take could be enough to enable the defendant to abscond or dispose of his property before a writ of attachment issues." It is not, however, notice to defendant that is sought to be avoided but the "time which such hearing would take" because of the possibility that defendant may delay the hearing to be able to dispose of his properties. On the contrary there may in fact be a need for a hearing before the writ is issued as where the issue of fraudulent disposal of property is raised.17It is not true that there should be no hearing lest a defendant learns of the application for attachment and he remove's his properties before the writ can be enforced.On the other hand, to authorize the attachment of property even before jurisdiction over the person of the defendant is acquired through the service of summons or his voluntary appearance could lead to abuse. It is entirely possible that the defendant may not know of the filing of a case against him and consequently may not be able to take steps to protect his interests.Nor may sheriff's failure to abide by the law be excused on the pretext that after all the court later acquired jurisdiction over petitioners. More important than the need for insuring success in the enforcement of the writ is the need for affirming a principle by insisting on that "most fundamental of all requisites the jurisdiction of the court issuing attachment over the person of the defendant."18It may be that the same result would follow from requiring that a new writ be served all over again. The symbolic significance of such an act, however, is that it would affirm our commitment to the rule of law.19IIWe likewise find petitioners' second contention to be meritorious. The records show that, on January 21, 1992, respondent judge ordered the examination of the books of accounts and ledgers of Brunner at the Urban Bank, Legaspi Village branch, and on January 30, 199 the records of account of petitioner Oate at the BPI, even as he ordered the PNB to produce the records regarding certain checks deposited in it.First. Sun Life defends these court orders on the ground that the money paid by it to Brunner was subsequently withdrawn from the Urban Bank after it had been deposited by Brunner and then transferred to BPI and to the unnamed account in the petitioner Oate's account in the BPI and to the unnamed account in the PNB.The issue before the trial court, however, concerns the nature of the transaction between petitioner Brunner and Sun Life. In its complaint, Sun Life alleges that Oate, in his personal capacity and as president of Econ, offered to sell to Sun Life P46,990,000.00 worth of treasury bills owned by Econ and Brunner at the discounted price of P39,526,500.82; that on November 27, 1991, Sun Life paid the price by means of a check payable to Brunner; that Brunner, through its president Noel L. Dio, issued to it a receipt with undertaking to deliver the treasury bills to Sun Life; and that on December 4, 1991, Brunner and Dio delivered instead a promissory note, dated November 27, 1991, in which it was made to appear that the transaction was a money placement instead of sale of treasury bills.Thus the issue is whether the money paid to Brunner was the consideration for the sale of treasury bills, as Sun Life claims, or whether it was money intended for placement, as petitioners allege. Petitioners do not deny receipt of P39,526,500.82 from Sun Life. Hence, whether the transaction is considered a sale or money placement does not make the money the "subject matter of litigation" within the meaning of 2 of Republic Act No. 1405 which prohibits the disclosure or inquiry into bank deposits except "in cases where the money deposited or invested is the subject matter of litigation." Nor will it matter whether the money was "swindled" as Sun Life contends.Second. The examination of bank books and records cannot be justified under Rule 57, 10. This provision states:Sec. 10. Examination of party whose property is attached and persons indebted to him or controlling his property;delivery of property to officer. Any person owing debts to the party whose property is attached or having in his possession or under his control any credit or other personal property belonging to such party, may be required to attend before the court in which the action is pending, or before a commissioner appointed by the court, and be examined on oath respecting the same. The party whose property is attached may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The court may, after such examination, order personal property capable of manual delivery belonging to him, in the possession of the person so required to attend before the court, to be delivered to the clerk of the court, sheriff, or other proper officer on such terms as may be just, having reference to any lien thereon or claims against the same, to await the judgment in the action.Since, as already stated, the attachment of petitioners' properties was invalid, the examination ordered in connection with such attachment must likewise be considered invalid. Under Rule 57, 10, as quoted above, such examination is only proper where the property of the person examined has been validly attached.WHEREFORE, the decision dated February 21, 1994 is RECONSIDERED and SET ASIDE and another one is rendered GRANTING the petitions forcertiorariand SETTING ASIDE the orders dated February 26, 1992 and September 9, 1992, insofar as they authorize the attachment of petitioners' properties and the examination of bank books and records pertaining to their accounts, and ORDERING respondent Judge Zeus C. Abrogar (1) forthwith to issue an alias writ of attachment upon the same bond furnished by respondent Sun Life Assurance Company of Canada;(2) direct the sheriff to lift the levy under the original writ of attachment and simultaneously levy on the same properties pursuant to the alias writ so issued; and(3) take such steps as may be necessary to insure that there will be no intervening period between the lifting of the original attachment and the subsequent levy under the alias writ.Petitioners may file the necessary counterbond to prevent subsequent levy or to dissolve the attachment after such levy.8. Mangila v CA G.R. NO. 50378 (Aug. 12, 2002)

FACTS: Petitioner Anita Mangila ("petitioner" for brevity) is an exporter of sea foods and doing business under the name and style of Seafoods Products. Private respondent Loreta Guina ("private respondent" for brevity) is the President and General Manager of Air Swift International, a single registered proprietorship engaged in the freight forwarding business.On the first shipment, petitioner requested for seven days within which to pay private respondent. However, for the next three shipments, March 17, 24 and 31, 1988, petitioner failed to pay private respondent shipping charges amounting to P109, 376.95.4Despite several demands, petitioner never paid private respondent. Thus, on June 10, 1988, private respondent filed Civil Case No. 5875 before the Regional Trial Court of Pasay City for collection of sum of money.On August 1, 1988, the sheriff filed his Sheriffs Return showing that summons was not served on petitioner. A woman found at petitioners house informed the sheriff that petitioner transferred her residence to Sto. Nio, Guagua, Pampanga. The sheriff found out further that petitioner had left the Philippines for Guam.5Thus, on September 13, 1988, construing petitioners departure from the Philippines as done with intent to defraud her creditors, private respondent filed a Motion for Preliminary Attachment. On September 26, 1988, the trial court issued an Order of Preliminary Attachment6against petitioner. The following day, the trial court issued a Writ of Preliminary Attachment.On October 28, 1988, Sheriff Alfredo San Miguel of RTC Pampanga served on petitioners household help in San Fernando, Pampanga, the Notice of Levy with the Order, Affidavit and Bond.7On November 7, 1988, petitioner filed an Urgent Motion to Discharge Attachment8without submitting herself to the jurisdiction of the trial court. She pointed out that up to then, she had not been served a copy of the Complaint and the summons. Hence, petitioner claimed the court had not acquired jurisdiction over her person.9The trial court granted the Motion to Discharge Attachment on January 13, 1989 upon filing of petitioners counter-bond. The trial court, however, did not rule on the question of jurisdiction and on the validity of the writ of preliminary attachment.On December 26, 1988, private respondent applied for an alias summons, which the trial court issued on January 19, 1989.11It was only on January 26, 1989 that summons was finally served on petitioner.12RTC ruling On November 20, 1989, the petitioner received a copy of the Decision of November 10, 1989, ordering petitioner to pay respondent P109,376.95 plus 18 percent interest per annum, 25 percent attorneys fees and costs of suit. Private respondent filed a Motion for Execution Pending Appeal but the trial court denied the same.CA RulingOn December 15, 1995, the Court of Appeals rendered a decision affirming the decision of the trial court. The Court of Appeals upheld the validity of the issuance of the writ of attachment and sustained the filing of the action in the RTC of Pasay.Hence this petition,ISSUEHELD: Improper Issuance and Service of Writ of AttachmentPetitioner ascribes several errors to the issuance and implementation of the writ of attachment. Among petitioners arguments are:1. first, there was no ground for the issuance of the writ since the intent to defraud her creditors had not been established; 2. second, the value of the properties levied exceeded the value of private respondents claim. However, the crux of petitioners arguments rests on the question of the validity of the writ of attachment. Because of failure to serve summons on her before or simultaneously with the writs implementation, petitioner claims that the trial court had not acquired jurisdiction over her person and thus the service of the writ is void.As a preliminary note, a distinction should be made between issuance and implementation of the writ of attachment. It is necessary to distinguish between the two to determine when jurisdiction over the person of the defendant should be acquired to validly implement the writ. This distinction is crucial in resolving whether there is merit in petitioners argument.This Court has long settled the issue of when jurisdiction over the person of the defendant should be acquired in cases where a party resorts to provisional remedies. A party to a suit may, at any time after filing the complaint, avail of the provisional remedies under the Rules of Court. Specifically, Rule 57 on preliminary attachment speaks of the grant of the remedy"at the commencement of the action or at any time thereafter."21This phrase refers to the date of filing of the complaint which is the moment that marks "the commencement of the action." The reference plainly is to a time before summons is served on the defendant, or even before summons issues.InDavao Light & Power Co., Inc. v. Court of Appeals,22this Court clarified the actual time when jurisdiction should be had:"It goes without saying that whatever be the acts done by the Court prior to the acquisition of jurisdiction over the person of defendant - issuance of summons,order of attachment and writ of attachment- thesedo not and cannot bind and affect the defendant until and unless jurisdiction over his person is eventually obtained by the court,either by service on him of summons or other coercive process or his voluntary submission to the courts authority. Hence, when the sheriff or other proper officer commencesimplementationof the writ of attachment, it is essential that he serve on the defendant not only a copy of the applicants affidavit and attachment bond, and of the order of attachment, as explicitly required by Section 5 of Rule 57, but also thesummonsaddressed to said defendant as well as a copy of the complaint xxx." (Emphasis supplied.)Furthermore, we have held that the grant of the provisional remedy of attachment involves three stages: first, the court issues the order granting the application; second, the writ of attachment issues pursuant to the order granting the writ; and third, the writ is implemented.For the initial two stages, it is not necessary that jurisdiction over the person of the defendant be first obtained.However,once the implementation of the writ commences,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.23In the instant case, the Writ of Preliminary Attachment was issued on September 27, 1988 and implemented on October 28, 1988.However, the alias summons was served only on January26,1989 or almost three months after the implementation of the writ of attachment.The trial court had the authority to issue the Writ of Attachment on September 27 since a motion for its issuance can be filed "at the commencement of the action." However, on the day the writ was implemented, the trial court should have, previously or simultaneously with the implementation of the writ, acquired jurisdiction over the petitioner. Yet, as was shown in the records of the case, the summons was actually served on petitioner several months after the writ had been implemented.Private respondent, nevertheless, claims that the prior or contemporaneous service of summons contemplated in Section 5 of Rule 57 provides for exceptions. Among such exceptions are "where the summons could not be served personally or by substituted service despite diligent efforts or where the defendant is a resident temporarily absent therefrom x x x." Private respondent asserts that when she commenced this action, she tried to serve summons on petitioner but the latter could not be located at her customary address in Kamuning, Quezon City or at her new address in Guagua, Pampanga.24Furthermore, respondent claims that petitioner was not even in Pampanga; rather, she was in Guam purportedly on a business trip.Private respondent never showed that she effected substituted service on petitioner after her personal service failed. Likewise, if it were true that private respondent could not ascertain the whereabouts of petitioner after a diligent inquiry, still she had some other recourse under the Rules of Civil Procedure.The rules provide for certain remedies in cases where personal service could not be effected on a party. Section 14, Rule 14 of the Rules of Court provides that whenever the defendants "whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation x x x." Thus, if petitioners whereabouts could not be ascertained after the sheriff had served the summons at her given address, then respondent could have immediately asked the court for service of summons by publication on petitioner.25Moreover, as private respondent also claims that petitioner was abroad at the time of the service of summons, this made petitioner a resident who is temporarily out of the country. This is the exact situation contemplated in Section 16,26Rule 14 of the Rules of Civil Procedure, providing for service of summons by publication.In conclusion, we hold that the alias summons belatedly served on petitioner cannot be deemed to have cured the fatal defect in the enforcement of the writ. The trial court cannot enforce such a coercive process on petitioner without first obtaining jurisdiction over her person. The preliminary writ of attachment must be served after or simultaneous with the service of summons on the defendant whether by personal service, substituted service or by publication as warranted by the circumstances of the case.27The subsequent service of summons does not confer a retroactive acquisition of jurisdiction over her person because the law does not allow for retroactivity of a belated service.10. Calderon v IAC (Nov. 11, 1987)For review on certiorari is respondent appellate Court's decision1in AC-G.R. No. 01420, which affirmed the Regional Trial Court's decision2appealed from holding the plaintiff Jose D. Calderon (petitioner herein) and his bondsman the Integrated Bonding and Insurance Company, Inc., jointly and severally liable to pay defendants (private respondents herein), damages caused by the filing by Calderon of the allegedly unwarranted suit and the wrongful and malicious attachment of private respondents' properties.The facts of the case are briefly as follows:On November 2, 1976, petitioner Calderon purchased from the private respondents the following: the Luzon Brokerage Corporation (LBC for brevity) and its five (5) affiliate companies, namely, Luzon Air Freight, Inc., Luzon Port Terminals Services, Inc., Luzon (GS) Warehousing Corporation, GS Industrial Management Corporation, and GS Luzon Trucking Corporation. Twenty one (21) days thereafter or on November 23, 1976, the Bureau of Customs suspended the operations of LBC for failure to pay the amount of P1,475,840.00 representing customs taxes and duties incurred prior to the execution of the sale. In order to lift the suspension Calderon paid the sum of P606,430.00 to the Bureau of Customs.On October 27, 1977, Calderon filed a complaint against private respondents to recover said amount of P1,475,840.00, with damages by reason of breach of warranty. In the same complaint, the petitioner prayed for a preliminary attachment, alleging: that private respondents had deliberately and willfully concealed from his knowledge such staggering liability of the LBC for the purpose of misleading him into buying the six aforesaid companies; and that private respondent Schulze is about to depart from the Philippines in order to defraud his creditors.To support the petition for preliminary attachment, the petitioner posted a surety bond of P1,475,840.00. On October 28, 1977, the trial court issued a writ of preliminary attachment, whereupon properties of the private respondents were attached and their bank deposits were garnished.On November 10, 1977, petitioner Calderon filed an amended complaint, alleging that while the liabilities of LBC are reflected in its books, the aforesaid amount was fraudulently withdrawn and misappropriated by private respondent Schulze. (pp. 7-18, Rollo)On the other hand, private respondents claimed: that the amount of P1,475,840.00 due to the Bureau of Customs represents the duties and taxes payable out of the advanced payments made by LBC's client, Philippine Refining Company (PRC, for brevity) in August, September and October, 1976, and in the first and second weeks of November 1976, after Calderon himself had taken control of the management of LBC (Exhibit A); that these deposit payments were properly recorded in the books of the corporation and existing as part of the corporate funds; that from the first week of June, 1976 up to October 30, 1976, private respondent Schulze fully disclose and explained to Calderon that these customer's advanced deposit payments (including those of the PRC) are to be paid to the Bureau of Customs when their corresponding customs taxes and duties become due; that during this phase of the negotiation, Calderon and his representatives inspected and studied the corporate books and records at will and learned the daily operations and management of LBC; that the petitioner did not pay out of his own pocket but out of the LBC funds the said amount of P606,430,30 demanded by the Bureau of Customs, as evidenced by a manager's check No. FEBTC 25092 (Exhibits 9, 10, 11 & 38) and another facility negotiated with the Insular Bank of Asia and America (Exhibit K-2); and that private respondents are setting up a counterclaim for actual, moral and exemplary damages as well as attorney's fees, as a consequence of the filing of the baseless suit and the wrongful and malicious attachment of their properties, (pp. 217-221, Rollo)On November 17, 1977, private respondents filed a counterbond, whereupon the trial court issued an order directing the sheriff to return all real and personal properties already levied upon and to lift the notices of garnishment issued in connection with the said attachment (Annex B, p. 42, Rollo).After trial, the trial court dismissed the complaint, holding Calderon and his surety First integrated Bonding and Insurance Co., Inc., jointly and severally liable to pay the damages prayed for by the private respondents.Said decision was affirmed on appeal, although slightly modified in the sense that the award of moral and exemplary damages in favor of private respondents Schulze and Amor was reduced. The dispositive portion of the judgment of affirmance and modification reads:WHEREFORE, the judgment of the lower court is modified as follows:To defendant-appellee George Schulze:P650,000.00 as moral damages andP200,000.00 as exemplary damages.To defendant-appellee Antonio C. Amor:P150,000.00 as moral damages andP30,000.00 as exemplary damages,An other dispositions in the judgment appealed from, including the dismissal of the amended complainant are hereby affirmedin toto.SO ORDERED.In his petition, petitioner Calderon asserts, among other things, that the court below erred:IIN HOLDING THAT THE PETITIONER FAILED TO ESTABLISH HIS CLAIMS.IIIN HOLDING THAT THE PRELIMINARY ATTACHMENT HAD BEEN WRONGFULLY AND MALICIOUSLY SUED OUT.IIIIN HOLDING THAT THE PETITIONER IS LIABLE NOT ONLY FOR ACTUAL DAMAGES BUT MORAL AND EX-EXEMPLARY DAMAGES AS WELL.On the other hand, petitioner Insurance Company raises the following issues:IWHETHER OR NOT THE PETITIONER SURETY IS LIABLE FOR DAMAGES ON ITS CONTRACTED SURETYSHIP NOTWITHSTANDING THE DISSOLUTION OF THE WRIT OF PRELIMINARY ATTACHMENT, AS A CON. SEQUENCE OF THE FILING OF THE DEFENDANT'S COUNTER- BOND, WHEREBY LEVIED PROPERTIES WERE ORDERED BY THE COURT RETURNED TO PRIVATE RESPONDENTS AND THE NOTICES OF GARNISHMENT ISSUED IN CONNECTION THEREWITH ORDERED LIFTED.IIWHETHER OR NOT THE SUBSEQUENT FILING BY PRIVATE RESPONDENTS OF A COUNTER-BOND TO DISCHARGE THE WRIT OF PRELIMINARY ATTACHMENT CONSTITUTE A WAIVER ON ANY DEFECT IN THE ISSUANCE OF THE ATTACHMENT WRIT.IIIWHETHER OR NOT A SURETY IS A GUARANTOR OF THE EXISTENCE OF A GOOD CAUSE OF ACTION IN THE COMPLAINT.The petition is devoid of merit.Whether or not the amount of P1,475,840.00 was duly disclosed as an outstanding liability of LBC or was misappropriated by private respondent Schulze is purely a factual issue. That Calderon was clearly in bad faith when he asked for the attachment is indicated by the fact that he failed to appear in court to support his charge of misappropriatio