Phil bank vs CA

Remedial Law; Provisional Remedies; Attachment; An order of attachment

cannot be issued on a general averment, such as one ceremoniously
quoting from a pertinent rule.While the Motion refers to the transaction
complained of as involving trust receipts, the violation of the terms of which
is qualified by law as constituting estafa, it does not follow that a writ of
attachment can and should automatically issue. Petitioner cannot merely
cite Section 1(b) and (d), Rule 57, of the Revised Rules of Court, as mere
reproduction of the rules, without more, cannot serve as good ground for
issuing a writ of attachment. An order of attachment cannot be issued on a
general averment, such as one ceremoniously quoting from a pertinent rule.

Same; Same; Same; A debt is fraudulently contracted if at the time of

contracting it the debtor has a preconceived plan or intention not to pay.
To sustain an attachment on this ground, it must be shown that the debtor
in contracting the debt or incurring the obligation intended to defraud the
creditor. The fraud must relate to the execution of the agreement and must
have been the reason which induced the other party into giving consent
which he would not have otherwise given. To constitute a ground for
attachment in Section 1 (d), Rule 57 of the Rules of Court, fraud should be
committed upon contracting the obligation sued upon. A debt is fraudulently
contracted if at the time of contracting it the debtor has a preconceived plan
or intention not to pay, as it is in this case. Fraud is a state of mind and need
not be proved by direct evidence but may be inferred from the circumstances
attendant in each case (Republic v. Gonzales, 13 SCRA 633). (Emphasis
ours)

Same; Same; Same; Fraudulent intent not to honor the admitted obligation
cannot be inferred from the debtors inability to pay or to comply with the
obligations.We find an absence of factual allegations as to how the fraud
alleged by petitioner was committed. As correctly held by respondent Court
of Appeals, such fraudulent intent not to honor the admitted obligation
cannot be inferred from the debtors inability to pay or to comply with the
obligations. On the other hand, as stressed, above, fraud may be gleaned
from a preconceived plan or intention not to pay. This does not appear to be
so in the case at bar.

Same; Same; Same; Rules on the issuance of a writ of attachment must be

construed strictly against the applicants.Time and again, we have held
that the rules on the issuance of a writ of attachment must be construed
strictly against the applicants. This stringency is required because the
remedy of attachment is harsh, extraordinary and summary in nature. If all
the requisites for the granting of the writ are not present, then the court which
issues it acts in excess of its jurisdiction.

Ng Wee

Remedial Law; Attachment; For a writ of attachment to issue under Section

1(d) of Rule 57, the applicant must sufficiently show the factual
circumstances of the alleged fraud because fraudulent intent cannot be
inferred from the debtors mere non-payment of the debt or failure to comply
with his obligation.For a writ of attachment to issue under this rule, the
applicant must sufficiently show the factual circumstances of the alleged
fraud because fraudulent intent cannot be inferred from the debtors mere
non-payment of the debt or failure to comply with his obligation. The
applicant must then be able to demonstrate that the debtor has intended to
defraud the creditor.
Same; Same; The affidavit, being the foundation of the writ, must contain
such particulars as to how the fraud imputed to respondent was committed
for the court to decide whether or not to issue the writ.The affidavit, being
the foundation of the writ, must contain such particulars as to how the fraud
imputed to respondent was committed for the court to decide whether or not
to issue the writ. Absent any statement of other factual circumstances to
show that respondent, at the time of contracting the obligation, had a
preconceived plan or intention not to pay, or without any showing of how
respondent committed the alleged fraud, the general averment in the
affidavit that respondent is an officer and director of Wincorp who allegedly
connived with the other defendants to commit a fraud, is insufficient to
support the issuance of a writ of preliminary attachment. In the application
for the writ under the said ground, compelling is the need to give a hint about
what constituted the fraud and how it was perpetrated because established
is the rule that fraud is never presumed.

Same; Same; The rules governing its issuance are strictly construed against
the applicant.Let it be stressed that the provisional remedy of preliminary
attachment is harsh and rigorous for it exposes the debtor to humiliation and
annoyance. The rules governing its issuance are, therefore, strictly
construed against the applicant, such that if the requisites for its grant are
not shown to be all present, the court shall refrain from issuing it, for,
otherwise, the court which issues it acts in excess of its jurisdiction.
Likewise, the writ should not be abused to cause unnecessary prejudice. If
it is wrongfully issued on the basis of false or insufficient allegations, it should
at once be corrected.

Tiu vs. Villar

Civil Procedure; Service of Summons; As a rule, personal service of

summons is preferred as against substituted servicethus, substituted
service can only be resorted to by the process server only if personal service
cannot be made promptly.As a rule, personal service of summons is
preferred as against substituted service. Thus, substituted service can only
be resorted to by the process server only if personal service cannot be made
promptly. Most importantly, the proof of substituted service of summons
must (a) indicate the impossibility of service of summons within a reasonable
time; (b) specify the efforts exerted to locate the defendant; and (c) state that
the summons was served upon a person of sufficient age and discretion who
is residing in the address, or who is in charge of the office or regular place
of business, of the defendant. It is likewise required that the pertinent facts
proving these circumstances be stated in the proof of service or in the
officers return.

Court Personnel; Sheriffs; By law, sheriffs are obligated to maintain

possession of the seized properties absent any instruction to the contrary.
By law, sheriffs are obligated to maintain possession of the seized properties
absent any instruction to the contrary. In this case, the writ of preliminary
attachment authorizing the trial court to legally hold the attached items was
set aside by the RTC Order dated July 8, 2010 specifically ordering Sheriff
Villar to immediately release the seized items to Spouses Tiu. Pertinently,
Rule 57, Section 19 of the Rules of Civil Procedure provides: SEC. 19.
Disposition of attached property where judgment is for party against whom
attachment was issued.If judgment be rendered against the attaching
party, all the proceeds of sales and money collected or received by the
sheriff, under the order of attachment, and all property attached remaining
in any such officers hands, shall be delivered to the party against whom
attachment was issued, and the order of attachment discharged.