PRELIMINARY ATTACHMENT

WHAT IS THE NATURE OF PRELIMINARY ATTACHMENT?

It is a provisional remedy issued upon order of the court where an action is pending to be
levied upon the property of the defendant so the property may be held by the sheriff as
security for the satisfaction of whatever judgment may be rendered in the case.
WHEN MAY ONE ASK FOR PRELIMINARY ATTACHMENT?
1.
2.

Commencement of the action

At any time before the entry of judgment

WHO MAY ASK FOR PRELIMINARY ATTACHMENT?

Plaintiff or any proper party
WHAT ARE THE GROUNDS UPON WHICH ATTACHMENT MAY ISSUE?
1. 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.
2. 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 person in a fiduciary
capacity or for a violation of a duty.
3. 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 authorized
person.
4. In 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 performance thereof
5. 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.
6. 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.
HOW MAY AN ORDER OF ATTACHMENT BE GIVEN?
1. Ex parte
2. Motion with notice and hearing
WHAT ARE THE REQUIREMENTS FOR THE ISSUANCE OF AN ORDER/WRIT OF P.A.?
The case must be any of those where preliminary attachment is proper
The applicant must file a motion
The applicant must show by affidavit that there is no sufficient security for the claim
sought to be enforced; that the amount claimed in the action is as much as the sum of
which the order is granted;
The applicant must post a bond executed to the adverse party. This bond answers for all
damages incurred by the party against whom the attachment was issued and sustained by
reason of the attachment.
WHAT DOES THE ORDER OF ATTACHMENT REQUIRE FOR THE SHERIFF?

 It must require the sheriff of the court to attach so much of the property in the Phils of the
party against whom it is issued, not exempt from execution, as may be sufficient to
satisfy the applicants demand.
WHEN DOES THE ORDER OF ATTACHMENT BE GRANTED?
Granted only when it appears by the affidavit of the applicant, or some other person who
personally knows the fact, that a sufficient cause of action exists, that the case is one of
those mentioned, that there is no other sufficient security for the claim sought to be
enforced by the action. A bond must also be executed which shall cover all the costs
which may be adjudged to the adverse party and all damages which he may sustain by
reason of attachment.
WHAT CAN A DEFENDANT DO TO PREVENT THE ATTACHMENT OF HIS PROPERTIES?
The defendant makes a deposit or gives a bond in an amount equal to that fixed in the
order, which may be the amount sufficient to satisfy the applicants demand or the value
of the property to be attached as stated by the applicant, exclusive of costs.
WHAT CAN A DEFENDANT DO TO DISCHARGE THE ATTACHMENT?
If the attachment has been enforce, the party whose property has been attached may file
a motion to discharge the attachment. This motion shall be with notice and hearing. After
due notice and hearing, the court shall discharge the attachment if the movant makes a
cash deposit or files a counter-bond executed to the attaching party. Counter-bonds are
replacements of the property formerly attached.
Without the need of counter-bond, the party files a motion to set aside or discharge the
attachment and during hearing of the motion proves that attachment was improperly
issued or enforced, bond is insufficient, attachment is excessive or the property is exempt
from execution.
WHAT ARE THE REMEDIES AVAILABLE TO THIRD-PARTY CLAIMANTS?
He may avail of Terceria by making an affidavit of his title or his right of possession,
stating the grounds of such right or title. This must be served upon the sheriff and the
attaching party.
Third-party claimant may invoke the courts authority in the same case and move for a
summary hearing.
He may file a separate action to nullify the levy with damages resulting from the unlawful
levy and seizure.

COMPLAINT FOR DAMAGES

WHAT MAY BE RECOVERED
Moral damages are awarded only to enable the injured party to obtain means, diversion or
amusement that will alleviate the moral suffering he has undergone, by reason of the
defendants culpable action.
No proof of pecuniary loss is necessary. The assessment is left to the discretion of the
court according to the circumstances of each case. However, there must be proof that
defendant caused physical suffering.
General Rule: Factual basis must be alleged. Aside from the need for the claimant to
satisfactorily prove the existence of the factual basis of the damages, it is also
necessary to prove its causal relation to the defendants act.

Exception: In criminal cases, moral damages may be awarded to the victim in such
amount as the court deems just without need for pleading or proof for the basis thereof.
Exemplary/Corrective Damages are those intended to serve as deterrent to serious
wrongdoings. To recover from this, the claimant must have been entitled to moral,
temperate or compensatory damages; and that the crime was committed with 1 or more
aggravating circumstance or the quasi-delict was committed with gross negligence, or in
contracts and quasi-contracts the act must be accompanied by bad faith or done in
wanton, fraudulent, oppressive or malevolent manner. No proof of pecuniary loss is
necessary.
Nominal Damages are those vindicating or recognizing the injured partys right to a
property that has been violated or invaded. No proof of pecuniary loss is necessary. Proof
that a legal right has been violated is what is only required. This is usually awarded in the
absence of proof of actual damages.
Temperate Damages may be recovered when the court finds that some pecuniary loss has
been suffered but its amount cannot, from the nature of the case, be proved with certainty.
No proof of pecuniary loss is necessary.
Actual/Compensatory damages simply make good or replace the loss caused by the
wrongdoer. It depends on proof; the injured party should keep records of actual payments
made. Without such pieces of evidence, actual damages cannot be awarded.
Liquidated Damages are frequently agreed upon by the parties, either by way of penalty
or in order to avoid controversy on the amount of damages. No proof of pecuniary loss is
necessary.
In contract or quasi-contracts, the defendant who acted in good faith is liable only for
damages which are the natural and probable consequences of the breach of the obligation
and which the parties have foreseen or could have reasonably foreseen at the time the
obligation was constituted. If there is fraud, bad faith, malice or wanton attitude, the
defendant is responsible for all damages which may be reasonably attributed to the nonperformance of the obligation.
In the case of crimes and quasi-delicts, the defendant is liable for all damages which are
the natural and probable consequences of the act or omission complained of by the
plaintiff. It is not necessary that the damages have been or could have reasonably
foreseen by the defendant. In addition, the defendant is liable for the loss of the earning
capacity of the deceased which shall be paid to the latters heirs, if he had any. The
defendant is likewise liable to give support for a period of not exceeding five years if the
decedent was obliged to give it. Meanwhile, damages from a crime may be increased or
decreased depending on the existence of aggravating or mitigating circumstances.
Damages may likewise be recovered in these situations: loss/impairment of earning
capacity for temporary or permanent personal injury and injury to the complainants
business standing or commercial credit.

THIRD PARTY COMPLAINT

Is a procedural device whereby a third party who is neither a party nor privy to the act
or deed complained of by the plaintiff, may be brought into the case with leave of court,
by the defendant, who acts as third-party plaintiff to enforce against such third-party
defendant a right for contribution, indemnity, subrogation or any other relief, in respect of
the plaintiffs claim. The third-party complaint is actually independent of and separate
and distinct from the plaintiffs complaint.
The Rules permit the defendant to bring third-party defendant to litigate his separate
action in respect of plaintiffs claim against a third party in the original and principal case
with the object of avoiding circuitry of action and unnecessary proliferation of lawsuits

and of disposing expeditiously in one litigation the entire subject matter arising from one
particular set of facts.

THIRD PARTY CLAIM

The remedy of Terceria is available to a third person other than the judgment
obligor or his agent who claims a property levied upon. Section 16, Rule 39 of
Rules of Civil Procedure provides:

If the property levied on is claimed by any person other than the judgment obligor or
his agent, and such person makes an affidavit of his title thereto or right to the
possession thereof, stating the grounds of such right or title, and serves the same upon
the officer making the levy and copy thereof, stating the grounds of such right or tittle,
and a serves the same upon the officer making the levy and a copy thereof upon the
judgment obligee, the officer shall not be bound to keep the property, unless such
judgment obligee, on demand of the officer, files a bond approved by the court to
indemnity the third-party claimant in a sum not less than the value of the property
levied on. In case of disagreement as to such value, the same shall be
determined by the court issuing the writ of execution. No claim for damages for the
taking or keeping of the property may be enforced against the bond unless the action
therefore is filed within one hundred twenty (120) days from the date of the filing of
the bond.

The officer shall not be liable for damages for the taking or keeping of the property, to
any third-party claimant if such bond is filed. Nothing herein contained shall prevent
such claimant or any third person from vindicating his claim to the property in a
separate action, or prevent the judgment obligee from claiming damages in the same
or a separate action against a third-party claimant who filed a frivolous or plainly
spurious claim.
When the writ of execution is issued in favor of the Republic of the Philippines, or any
officer duly representing it, the filing of such bond shall not be required, and in case
the sheriff or levying officer is sued for damages as a result of the levy, he shall be
represented by the Solicitor General and if held liable therefor, the actual damages
adjudged by the court shall be paid by the National Treasurer out of such funds as may
be appropriated for the purpose.

COMPLAINT FOR INTERVENTION

NATURE OF INTERVENTION
A legal proceeding by which a person who is not a party to the action is permitted by the
court to become a party by intervening in a pending action after meeting the conditions
and requirement set by the Rules of Court. This third person who intervenes is one who is
not originally impleaded in the action.
Intervention is never an independent proceeding but is ancillary and supplemental to an
existing litigation. its purpose is to enable a stranger to an action to become a party to
protect his interest.
WHO MAY INTERVENE

 A person who has a legal interest in the matter in litigation, or in the success of either of
the parties, or an interest against both, or is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court or of an officer
thereof may, with leave of court, be allowed to intervene in the action. The court shall
consider whether or not the intervention will unduly delay or prejudice the adjudication of
the rights of the original parties, and whether or not the intervenor's rights may be fully
protected in a separate proceeding.
TIME TO INTERVENE
The motion to intervene may be filed at any time before rendition of judgment by the trial
court. A copy of the pleading-in-intervention shall be attached to the motion and served on
the original parties.
PLEADINGS-IN-INTERVENTION
The intervenor shall file a complaint-in-intervention if he asserts a claim against either or
all of the original parties or an answer-in-intervention if he unites with the defending party
in resisting a claim against the latter.

COMPLAINT FOR REPLEVIN

PURPOSE OF REPLEVIN
For the delivery of the personal property
PROCEDURE FOR THE APPLICATION FOR REPLEVIN

A party praying for the provisional remedy of replevin must file an application for a writ of
replevin. His application for the writ must be filed at the commencement of the action or
at any time before the defendant answers.
The application must contain an affidavit where the applicant particularly describes the
property that he is the owner or that he is entitled to the possession thereof.
The affidavit must state that the property is wrongfully detained by the adverse party,
alleging therein the cause of the detention.
The affidavit must state that the property has not been distrained or taken for a tax
assessment or a fine pursuant to law, or seized under a writ of execution or preliminary
attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt
from such seizure or custody
The actual market value of the property.
The applicant must give a bond, executed to the adverse party and double the value of
the property. This is for the payment to the adverse party of such sum as he may recover
from the applicant in the action.

ORDER OF THE COURT AND DUTY OF THE SHERIFF

When the court approves the application, the court shall issue an order and the
corresponding writ of replevin, describing the personal property alleged to be wrongfully
detained and requiring the sheriff forthwith to take such property into his custody.

 Upon receipt of the court order, the sheriff must serve a copy of the order on the adverse
party, together with a copy of the application, affidavit and bond; and take the custody of
the property.
After the sheriff has taken custody of the property, he must keep it in a secure place.
Within 5 days from taking of the property, the sheriff shall wait for the move of the
adverse party. if the latter does not object to the sufficiency of the bond after said period
or perform acts to effect the return to him of the property taken by the sheriff, the
property shall be delivered to the applicant.
HOW ADVERSE PARTY CAN SEEK THE RETURN OF THE PROPERTY
If within five days from the taking of the property by the sheriff, the adverse party decides
to have the property back, he may require the return thereof by filing with the court where
the action I spending a bond executed to the applicant, in double the value of the property
conditioned upon the payment of such sum as may be recovered against the adverse
party and by serving a copy of such bond on the applicant.
If the bond is sufficient and in the proper form, the adverse party gets the property back.
where the adverse party did not object to the other partys bond nor posted a redelivery
bond to recover the possession of the property taken under writ of replevin, the sheriff is
under obligation to deliver the property to the applicant