The Philippines - Attachment of Assets
Karl Arian A. Castillo, Fortun Narvasa & Salazar Law Offices
Originally from Attachment of Assets
1. What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained (attachments)? Freezing property in place? Placing it in the custody of a third party, such as a court official, sheriff or marshall?
Under Rule 57 of the 2019 Amended Rules of Civil Procedure that the Supreme Court promulgated, a plaintiff desiring to secure the judgment that he may obtain in the suit may apply for the issuance of a Writ of Attachment. The court may issue the Writ once certain conditions are satisfied. A Writ of Attachment is therefore akin to an execution of the judgment in advance.
A Writ of Preliminary Attachment is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property or properties of the defendant therein, the same to be held thereafter by the sheriff as security for the satisfaction of whatever judgment might be secured in said action by the attaching creditor against the defendant.
The provisional remedy of attachment is available in order that the defendant may not dispose of his property attached, and thus secure the satisfaction of any judgment that may be secured by plaintiff from defendant. The purpose and function of an attachment or garnishment is two-fold. First, it seizes upon property of an alleged debtor in advance of final judgment and holds it subject to appropriation thus preventing the loss or dissipation of the property by fraud or otherwise, Second, it subjects .to the payment of a creditor's claim property of the debtor in those cases where personal service cannot be obtained upon the debtor.
By its nature, preliminary attachment, is an ancillary remedy applied for to enable the attaching party to realize upon the relief sought and expected to be granted in the main or principal action; it is a measure auxiliary or incidental to the main action. As such, it is available during its pendency, which may be resorted to by a litigant to preserve and protect certain rights and interests during the interim, awaiting the ultimate effects of a final judgment in the case. In addition, attachment is also availed of in order to acquire jurisdiction over the action by actual or constructive seizure of the property in those instances where personal or substituted service of summons on the defendant cannot be affected.