Professional Documents
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Final/Levy upon execution: Available after the judgment in the main action has become executory, and for the satisfaction of said judgment.
3 Stages
The issuance of the order of the court granting the application;
The issuance of the WPA; and
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.
1st Ground
Implied contracts include liabilities arising from law, quasi-contract, delict, or quasidelict No issuance may be made in actions for moral and exemplary damages only
Illustrative Case
K. O. Glass Construction Co., Inc. v. Valenzuela, 116 SCRA 563 (1982)
The plaintiff merely alleged that Kenneth O. Glass is a foreigner Failed to allege that he may depart from the Philippines with intent to defraud his creditors. SC set aside the issuance of the writ of preliminary attachment.
2nd Ground
(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.
Illustrative Case
Walter E. Olsen & Co. v. Olsen, 48 Phil. 238 (1925)
Abuse of confidence of an officer who acted as the president, treasurer and general manager of a company
3rd Ground
(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.
3rd Ground
Replevin (Rule 60) The purpose of the action is for the recovery of possession of personal property belonging to the plaintiff. Preliminary Attachment (Rule 57)
The property belongs to the defendant and is sought to be attached by the plaintiff to secure the satisfaction of any judgment that he
4th Ground
(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. Therefore, the 4th ground is fraud in the: 1. Contracting of a debt; 2. Incurring an obligation; and 3. Performance of an obligation.
5th Ground
(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. Mere removal or disposal without intent to defraud defendant's creditor is not ground for attachment.
Mere allegation that the defendant is in the verge of insolvency . . . since insolvency is not a ground for attachment, especially if the defendant has not been shown to have committed any act to defraud its creditors. Sps. Yu v. Te
5th Ground
Mere removal or disposal of property by itself is not a ground for preliminary attachment. . . The removal must have been made to defraud defendants creditors. Carpio v. Macadaeg Mere allegation that the defendant mortgaged his property does not necessarily imply that it is being done in fraud of creditors. Factual bases for such allegation must be clearly averred. Adlawan v. Torres
6th Ground
(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. Preliminary attachment may be granted against a defendant who does not reside and is not found in the Philippines under Sec. 15 Rule 14 or against a defendant whose identity and whereabouts is unknown and cannot be ascertained by diligent inquiry. The attachment converts an action in personam into an action quasi in rem and validates
Bond
To cover any damages that may be caused the party against whom the attachment is issued if it is not warranted.
The amount due to the applicant is as much as the sum for which the order is granted above all legal counterclaims.
Cause of Action
It is not enough to state that a sufficient cause of action exists
Must state facts showing cause of action Must convince the court that the facts support a cause of action Whether or not the affidavit sufficiently established facts therein stated is a question to be determined by the court in the exercise of sound discretion. It all depends upon the amount of credit given it by the judge who may accept or reject it in the exercise of his discretion. (La Granja, Inc. vs. Samson, 58 Phil 378)
The amount due to the applicant is as much as the sum for which the order is granted above all legal counterclaims.
in Sec.
State facts, i.e. place, time, date, etc. to illustrate grounds for attachment relied upon.
Adlawan vs. Torres, 233 SCRA 645 A bare allegation that an encumbrance of property is in fraud of creditors does not suffice. Factual bases for such conclusion must be clearly averred.
The amount due to the applicant is as much as the sum for which the order is granted above all legal counterclaims.
Security
It must be alleged that there is no sufficient security for the claim. Rationale: If the claim is secured, there is no need to attach!
The amount due to the applicant is as much as the sum for which the order is granted above all legal counterclaims.
Conditioned that the bond will pay all the costs which be adjudged to the adverse party and all damages he may sustain if the court should later adjudge that the applicant is not entitled thereto.
Sheriffs actual possession of movable property attached is necessary for valid levy of attachment. Walker v. McMicking, 14 Phil. 668 (1909)
Leave a copy of these with the occupant of the property or with such other person or his agent if found within the province.
A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned.
Section 8: Effect of Attachment of Debts, Credits And All Other Similar Property
Garnishment
Results in a forced novation by the substitution of creditors, that is, the judgment debtor who is the original creditor of the garnishee is, through service of the writ of garnishment, substituted by the judgment creditor who thereby becomes the creditor of the garnishee.
Shall not impair the powers of the executor, administrator, or other personal representative of the decedent over the property for administration purposes. Such personal representative, however, shall report the attachment to the court when any petition for distribution is filed, Distribution may be awarded but the property attached shall be ordered delivered to the sheriff making the levy, subject to the claim of such heir,
Section 10: Examination of Party Whose Property is Attached and Persons Indebted to Him or Controlling His Property; Delivery of Property to Sheriff
Section 10
Procedure if garnishee denies indebtedness
If indebtedness is admitted payment of the
money by the garnishee to the judgment creditor or into court brings the proceeding to a close, so far as the garnishee is concerned If indebtedness is not admitted or if the garnishee fails to answer he may be required to attend before the court in which the action is pending to be examined on oath
If the liability is made manifest, the officer of the court
(under Sec. 15 of Rule 57) may collect the money and pay it to the person entitled.
Section 10
If garnishee denies the debt or claims the property, the court cannot compel him to pay or deliver the property, but a separate action must be instituted.
Order personal property capable of manual delivery xxx
Applicable only in cases where indebtedness is admitted by garnishee, or a personal property capable of manual delivery belonging to the defendant is in the possession of the person so required to attend before the court.
Bucra v. Macadaeg, 84 Phil. 493: controversy must be determined by action, as provided in Sec. 43,
Section 11
Property that has been attached may be sold after levy and before judgment when they are perishable or at the interest of all parties. Proceeds shall be deposited in court (custodia legis) and after entry of judgment, shall be paid to judgment obligee or returned to judgment obligor.
Section 12
The attachment is totally discharged upon a cash deposit or a counter bond is filed equal to the amount as fixed in the order of attachment. Attachment is only partially discharged on a particular property if the cash deposit or bond is only equal to the value of the cash deposit or bond. Either way, the cash bond or counter bond secures the payment of the judgment. The released property becomes free and no longer liable to the results of the proceeding.
Section 13
Grounds for Discharge
1. Attachment was improperly or irregularly
Section 13
Other Grounds for Discharge
1. Debtor has posted a counter bond or cash
(Sec. 19).
3. Property attached is exempt from attachment.
Section 14
Property is Claimed by a 3rd Person If a 3rd Party Claim is filed, the sheriff is not bound to proceed with the levy unless he is given by the judgment creditor an indemnity bond. Escovilla v. CA
The absence of an indemnity bond may hold the sheriff liable for damages for keeping or taking the property seized. FBCD v. Yllas Lending
Section 14
Remedies of 3rd Pary
1. 3rd Party Claim 2. Independent action to recover property 3. Motion for intervention
A 3rd party claim may be filed with the sheriff while he is still in possession.
Section 15
If judgment is in favor of attaching party and writ of execution is issued, the sheriff may cause judgment be satisfied from the attached property by:
Paying to judgment obligee the proceeds of the sale in pursuance of court order or as much as necessary to satisfy judgment. If balance is due, by selling real and personal property in the sheriff or courts hands to satisfy the balance. Collecting credits or debts belonging to judgment obligor at the time of attachment and paying judgment obligee.
Section 16
If there are any balance left after selling attached property and collecting credits and debts, the sheriff must collect such balance as in any executions. Upon satisfaction of the judgment and property still remains with the sheriff, he must return them to judgment obligor and any excess of the proceeds of sale of attached property.
Section 17
In order that a judgment creditor may recover from the surety on the counter bond it is necessary: 1. Execution be first issued against debtor and said execution is returned unsatisfied. 2. Creditor must make a demand on the surety. 3. Surety be given notice and hearing in the same action as to his liability under the counter bond. Leelin Marketing v. C&S Agro Surety is entitled to be heard before execution can be issued against him. Notice and hearing constitute procedural due process. Towers Assurance v. Ororama Supermarket
Section 18
If instead of a counter bond, cash deposit is made by the party with attached property, the cash shall be used to satisfy the judgment. If there are any excess, it must be refunded to the depositor. If judgment is in favor of the depositor, the whole amount must be refunded to him.
Section 19
If judgment is in favor of the party whose property was attached, all attached properties including proceeds of any sale and money, debts or credit collected shall be returned to him. In such a case, the attachment shall be discharged.
Section 20
Claim for damage on account of improper, irregular and excessive attachment
The bond posted by the attaching creditor is to answer for cost and damages which may be sustained by defendant by reason of the suit. It is a claim for damage on account of illegal attachment and which shall be included in the final judgment. This claim must be filed before trial or before appeal is perfected or before judgment becomes executory with notice to attaching creditor and surety Leelin Marketing v. C&A Agro
Section 20
Finding of wrongful attachment does not warrant automatic award of damages to attachment debtor, the latter must first discharge the burden of proving the nature and extent of the injury incurred by reason of wrongful attachment. Sps. Yu v. Te
Defendant may be awarded damages even if the main action is against him. Id.