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SALGADO VS. COURT OF APPEALS

March 26, 1984 (128 SCRA 395)
FACTS:
PCIB filed action to recover on a promissory note with prayer for writ of attachment. CFI
Rizal lifted the writ of attachment it previously issued after petitioner moved to quash it.
Bank posted bond. The Court of Appeals reconsidered and authorized the issuance of
the writ of attachment.
ISSUE:
Can a writ of attachment issue if note sued upon is fully secured?
HELD:
Petition is impressed with merit.
The chief purpose of attachment is to secure a contingent lien on defendants property
until plaintiff can obtain a judgment and have such property applied to its satisfaction or
to make some provision to unsecured debts in cases where the means of satisfaction
thereof are liable to be removed beyond the jurisdiction, or improperly disposed of or
concealed, or otherwise placed beyond the reach of creditors.
Sec. 1, Rule 57 states the grounds on which attachment may issue.
Sec. 3, Rule 57. An order of attachment shall be granted only when it appears by the
affidavit of the applicant, or of some other person who personally knows the facts that
xxxxx there is no other sufficient security for the claim sought to be enforced by the
action.
The reason for the rule prohibiting attachment where indebtedness was already secured
is to prevent the secured creditors from attaching additional property and thus tying up
more of the debtors property than was necessary to secure the indebtedness.
To sustain an order of attachment, it is incumbent upon the plaintiff to establish either of
these 2 facts:
a) that the obligation had not been secured originally
b) that, if secured at its beginning, the security later became valueless.
Sec. 13, Rule 57 authorizes the discharge of an attachment where the same had been
improperly or irregularly issued.
Rule authorizing issuance of writ of attachment must be strictly construed in favor of
defendant.

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ABOITIZ and COMPANY VS. COTABATO BUS COMPANY

June 17, 1981 (105 SCRA 88)
Case:
Appeals.

Appeal by certiorari from decision of Court of

FACTS:
Writ of preliminary attachment issued ex parte by CFI Davao.
(Aboitiz-plaintiff for collection of money P155,739.41 owed by
Cotabato Bus Co.) Buses, machinery, equipment were attached.
Petitioner alleges that the company made payment of a measly
P634.00 obligation with personal check of company president and
says companys bank account was reduced to nil.
ISSUE:
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.
HELD:
Whether insolvency may be a ground for the issuance of a Writ of
Attachment NEGATIVE. The Court of Appeals is correct.

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ADLAWAN VS. TORRES

July 4, 1994 (233 SCRA 645)
ISSUE:
Legality of the writ of attachment issued by respondent judge in the
consolidated cases for sums of money filed by Aboitiz and Company against the Spouses
Adlawan.
HELD:
The affidavit submitted by respondent Aboitiz in support of its prayer for the
writ of attachment does not meet the requirements of Rule 57 of the Revised Rules of
Court regarding the allegations on impending fraudulent removal, concealment and
disposition of defendant's property. As held in Carpio v. Macadaeg, 9 SCRA 552 (1963), to
justify a preliminary attachment, the removal or disposal must have been made with
intent to defraud defendant's creditors. Proof of fraud is mandated by paragraphs (d) and
(e) of Section 1, Rule 57 of the Revised Rules of Court on the grounds upon which
attachment may issue. Thus, the factual basis on defendant's intent to defraud must be
clearly alleged in the affidavit in support of the prayer for the writ of attachment if not so
specifically alleged in the verified complaint.
It is evident from said affidavit that the prayer for attachment rests on the mortgage by
petitioners of 11 parcels of land in Cebu, which encumbrance respondent Aboitiz
considered as fraudulent concealment of property to its prejudice. We find, however, that
there is no factual allegation which may constitute as a valid basis for the contention
that the mortgage was in fraud of respondent Aboitiz. As this Court said in Jardine-Manila
Finance, Inc. v. Court of Appeals, 171 SCRA 636 (1989), "[T]he general rule is that 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.
The execution of a mortgage in favor of another creditor is not conceived by
the Rules as one of the means of fraudulently disposing of one's property. By
mortgaging a piece of property, a debtor merely subjects it to a lien but
ownership thereof is not parted with.
Furthermore, the inability to pay one's creditors is not necessarily synonymous with
fraudulent intent not to honor an obligation (Insular Bank of Asia & America, Inc. v. Court
of Appeals, 190 SCRA 629 [1990]).
Consequently, when petitioners
directing the issuance of the
considered it as a motion for
conducted a hearing or required

Rule 57

filed a motion for the reconsideration

writ of attachment, respondent Judge
the discharge of the attachment and
submission of counter-affidavits from the

of the order
should have
should have
petitioners, if

only to gather facts in support of the allegation of fraud (Jopillo, Jr. v. Court of Appeals,
167 SCRA 247 [1988]). This is what Section 13 of Rule 57 mandates.
This procedure should be followed because, as the Court has time and again said,
attachment is a harsh, extraordinary and summary remedy and the rules governing its
issuance must be construed strictly against the applicant. Verily, a writ of attachment
can only be granted on concrete and specific grounds and not on general averments
quoting perfunctorily the words of the Rules (D.P. Lub Oil Marketing Center, Inc. v.
Nicolas, 191 SCRA 423 [1990]). Petition granted.

THE CONSOLIDATED BANK and TRUST CORP VS

INTERMEDIATE APELLATE COURT
May 29, 1987 (150 SCRA 591)
FACTS:
Solidbank loaned NICOS P4,076,518.64. A collection case was filed. As a
result of a writ of attachment, 2 real properties of defendant were levied
and attached. These same properties were extrajudicially foreclosed by
UCPB where properties have been mortgaged previously. UCPB sold its
rights and interests over the properties to Manuel Go who also sold the
same to GOLDEN STAR (private respondent). NICOS executed waiver of
right of redemption in favor of Golden Star. Court granted writ of possession
filed by Golden Star. Solidbank filed omnibus motion to annul the writ of
possession which was denied. Solidbank filed appeal before IAC on the
ground that the properties were under custodia legis. IAC affirmed in toto
order of the Malolos court.
ISSUE:
Whether or not an attaching creditor acquires the right of redemption of a
debtor over the attached properties of the latter which are subsequently
extrajudicially foreclosed by third parties.
WON the subject properties were under custodia legis by virtue of the prior
annotation of a writ of attachment in petitioners favor at the time the
properties were extrajudicially foreclosed.
HELD:

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YES. Based on the evidence, conclusion is clear that the disputed real
properties were under custodia legis by virtue of a valid attachment at the
time the same were extrajudicially foreclosed by a third party mortgagee.
The rule is well-settled that when a writ of attachment has been
levied on real property or any interest therein belonging to the
judgment debtor, the levy thus effected creates a lien which
nothing can destroy but its dissolution.
Necessary consequence: The writ of possession in favor of Golden Star is
null and void ab initio because it interfered with the jurisdiction of a coordinate and co-equal court.

Rule 57