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BAR EXAM QUESTIONS ON PRELIMINARY ATTACHMENT

Group Members

1. Jenn Kathlenn Alterado


2. Stephanie Claros
3. Wel Jean Jaque
4. Glen Marvin Tiu

Contents
2014 BAR EXAMINATION ..................................................................................................................... 1
2013 BAR EXAMINATION ..................................................................................................................... 3
2012 BAR EXAMINATION ..................................................................................................................... 3
2011 BAR EXAMINATION ..................................................................................................................... 5
2008 BAR EXAMINATION ..................................................................................................................... 6
2005 BAR EXAMINATION ..................................................................................................................... 7
2002 BAR EXAMINATION ..................................................................................................................... 8
1999 BAR EXAMINATION ..................................................................................................................... 8
1996 BAR EXAMINATION ..................................................................................................................... 9
1993 BAR EXAMINATION ..................................................................................................................... 9
1991 BAR EXAMINATION ................................................................................................................... 10
1988 BAR EXAMINATION ................................................................................................................... 11
1986 BAR EXAMINATION ................................................................................................................... 12
1985 BAR EXAMINATION ................................................................................................................... 15
1983 BAR EXAMINATION ................................................................................................................... 16
1982 BAR EXAMINATION ................................................................................................................... 17
1980 BAR EXAMINATION ................................................................................................................... 18
1978 BAR EXAMINATION ................................................................................................................... 18
1975 BAR EXAMINATION ................................................................................................................... 19

2014 BAR EXAMINATION


MCQ

VI. As a rule, courts may not grant an application for provisional remedy without complying with the
requirements of notice and hearing. These requirements, however, may be dispensed with in an
application for: (1%)

(A) writ of preliminary injunction


(B) writ for preliminary attachment

(C) an order granting support pendente lite

(D) a writ of replevin

ANSWER: (B) writ for preliminary attachment AND (D) a writ of replevin

ESSAY

Bayani, an overseas worker based in Dubai, issued in favor of Agente, a special power of attorney to sell
his house and lot. Agente was able to sell the property but failed to remit the proceeds to Bayani, as
agreed upon. On his return to the Philippines, Bayani, by way of a demand letter duly received by Agente,
sought to recover the amount due him. Agente failed to return the amount as he had used it for the
construction of his own house. Thus, Bayani filed an action against Agente for sum of money with
damages. Bayani subsequently filed an ex-parte motion for the issuance of a writ of preliminary
attachment duly supported by an affidavit. The court granted the ex-parte motion and issued a writ of
preliminary attachment upon Bayani’s posting of the required bond. Bayani prayed that the court’s sheriff
be deputized to serve and implement the writ of attachment. On November 19, 2013, the Sheriff served
upon Agente the writ of attachment and levied on the latter’s house and lot. On November 20, 2013, the
Sheriff served on Agente summons and a copy of the complaint. On November 22, 2013, Agente filed an
Answer with Motion to Discharge the Writ of Attachment alleging that at the time the writ of preliminary
attachment was issued, he has not been served with summons and, therefore, it was improperly issued.
(4%)

(A) Is Agente correct?

(B) Was the writ of preliminary attachment properly executed?

ANSWERS:

(A) No, Agente is not correct.

Under the Rules of Civil Procedure, a writ of attachment may issue even before service of summons upon
the defendant. (S2 R57).

(B) No, the writ of preliminary attachment not properly executed.

Under S5 R57, no levy on preliminary attachment shall be enforced unless there is prior or simultaneous
service of the summons and the accompanying papers. The Supreme Court has held that subsequent
service of summons will not cure the irregularity that attended the enforcement of the writ (Onate v.
Abrogar, 23 February 1995).

Here the sheriff levied upon the house and lot prior to the service of the summons and the complaint
upon Agente. Hence the writ of preliminary attachment was not properly executed. The subsequent
service of summons and the complaint did not cure the irregularity in the enforcement of the writ.
2013 BAR EXAMINATION
MCQ

XVII. When is attachment improper in criminal cases? (1%)

(A) When the accused is about to abscond from the Philippines.

(B) When the criminal action is based on a claim for money or property embezzled or fraudulently
misapplied or converted to the use of the accused who is a broker, in the course of his employment as
such.

(C) When the accused is about to conceal, remove, or dispose of his property.

(D) When the accused resides outside the jurisdiction of the trial court.

SUGGESTED ANSWER: (D), Under Section 2 of Rule 127, when the civil action is properly instituted in the
criminal action as provided in Rule 111, the offended party may have the property of the accused attached
as security for the satisfaction of any judgment that may be recovered from the accused in the following
cases:

(a) When the accused is about to abscond from the Philippines;

(b) When the criminal action is based on a claim for money or property embezzled or fraudulently
misapplied or converted to the use of the accused who is a public officer, officer of a corporation,
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 wilful violation of duty;

(c) When the accused has concealed, removed, or disposed of his property, or is about to do so;
and

(d) When the accused resides outside the Philippines.

2012 BAR EXAMINATION


MCQ

28. X and Y, both residents of Bgy. II, Sampaloc, Manila entered into a P 100,000 loan agreement. Because
Y defaulted, X sued Y for collection and the complainant prayed for issuance of preliminary attachment. Y
moved to dismiss the complaint because there was no Barangay conciliation. The court should therefore:

a. dismiss X's complaint for prematurity.

b. dismiss X's complaint for lack of cause of action.

c. deny Y's motion because it is exempt from Barangay conciliation.

d. deny Y's motion because of the amount of the loan.


SUGGESTED ANSWER: (c), As a general rule, no complaint, petition, action or proceeding involving any
matter within the authority of the Lupon shall be filed or instituted in court or any other government
office for adjudication unless there has been a confrontation of the parties before the Lupon Chairman or
the Pangkat and no conciliation or settlement has been reached as certified by the Lupon Secretary or the
Pangkat Secretary, attested by the Lupon or Pangkat Chairman, or unless the Settlement has been
repudiated. However, the parties may go directly to court in actions coupled with provisional remedies
such as preliminary injunction, attachment, delivery of personal property and support pendent lite. (Sec.6,
P.D. 1508, Katarungang Pambarangay Law). Since X‟s complaint against Y involves collection of sum of
money with prayer for issuance of preliminary attachment, there is no need for prior barangay
conciliation, and therefore the Court should deny Y‟s Motion to Dismiss.

ESSAY

Attachment; Kinds of Attachment (2012)

No.IX.B. Briefly discuss/differentiate the following kinds of Attachment: preliminary attachment,


garnishment, levy on execution, warrant of seizure and warrant of distraint and levy. (5%)

SUGGESTED ANSWER:

PRELIMINARY ATTACHMENT- is a provisional remedy under Rule 57 of the Rules of Court. it may be sought
at the commencement of an action or at any time before entry judgment where property of an adverse
party may be attached as security for the satisfaction of any judgment, where this adverse party is about
to depart from the Philippines, where he has intent to defraud or has committed fraud, or is not found in
the Philippines. An affidavit and a bond is required before the preliminary attachment issues. It is
discharged upon the payment of a counterbond.

GARNISHMENT- is a manner of satisfying or executing judgment where the sheriff may levy debts, credits,
royalties, commissions, bank deposits, and other personal property not capable of manual delivery that
are in the control or possession of third persons and are due the judgment obligor. Notice shall be served
on third parties. The third party garnishee must make a written report on whether or not the judgment
obligor has sufficient funds or credits to satisfy the amount of the judgment. If not, the report shall state
how much fund or credits the garnishee holds for the judgment obligor. Such garnish amounts shall be
delivered to the judgment oblige-creditor (Rule 39, Sec.9 [c]).

LEVY ON EXECUTION- is a manner of satisfying or executing judgment where the sheriff may sell property
of the judgment obligor if he is unable to pay all or part of the obligation in cash, certified bank check or
any other manner acceptable to the oblige. If the obligor does not chose which among his property may
be sold, the sheriff shall sell personal property first and then real property second. He must sell only so
much of the personal and real property as is sufficient to satisfy judgment and other lawful fees. (Rule 39,
Sec.9 [b]).

WARRANT OF SEIZURE- is normally applied for, with a search warrant, in criminal cases. The warrant of
seizure must particularly describe the things to be seized. While it is true that the property to be seized
under a warrant must be particularly described therin and no other property can be taken thereunder,
yet the description is required to be specific only insofar as the circumstances will ordinarily allow. An
application for search and seizure warrant shall be filed with the following: (a) Any court within whose
territorial jurisdiction a crime was committed. (b) For compelling reasons stated in the application, any
court within the judicial region where the crime was committed if the place of the commission of the
crime is known, or any court within the judicial region where the warrant shall be enforced. However, if
the criminal action has already been filed, the application shall only be made in the court where the
criminal action is pending.

WARRANT OF DISTRAINT AND LEVY- is remedy available to local governments and the BIR in tax cases to
satisfy deficiencies or delinquencies in inheritance and estate taxes, and real estate taxes. Distraint is the
seizure of personal property to be sold in an authorized auction sale. Levy is the issuance of a certification
by the proper officer showing the name of the taxpayer and the tax, fee, charge, or penalty due him. Levy
is made by writing upon said certificate the description of the property upon which levy is made.

Attachment; Preliminary Attachment (2012)

No.VIII.

A. (a) A sues B for collection of a sum of money. Alleging fraud in the contracting of the loan, A applies for
preliminary attachment with the court. The Court issues the preliminary attachment after A files a bond.
While summons on B was yet unserved, the sheriff attached B's properties. Afterwards, summons was
duly served on B. 8 moves to lift the attachment. Rule on this. (5%)

SUGGESTED ANSWER: I will grant the motion since no levy on attachment pursuant to the writ shall be
enforced unless it is preceded or contemporaneously accompanied by service of summons. There must
be prior or contemporaneous service of summons with the writ of attachment. (Rule 57, Sec.5, Rules of
Court).

2011 BAR EXAMINATION


MCQ

(40) Arthur, a resident foreigner sold his car to Bren. After being paid but before delivering the car, Arthur
replaced its original sound system with an inferior one. Bren discovered the change, rejected the car, and
demanded the return of his money. Arthur did not comply. Meantime, his company reassigned Arthur to
Singapore. Bren filed a civil action against Arthur for contractual fraud and damages. Upon his application,
the court issued a writ of preliminary attachment on the grounds that (a) Arthur is a foreigner; (b) he
departed from the Philippines; and (c) he was guilty of fraud in contracting with Bren. Is the writ of
preliminary attachment proper?

(A) No, Arthur is a foreigner living abroad; he is outside the court’s jurisdiction.

(B) Yes, Arthur committed fraud in changing the sound system and its components before delivering the
car bought from him.
(C) Yes the timing of his departure is presumptive evidence of intent to defraud.

(D) No, since it was not shown that Arthur left the country with intent to defraud Bren.

ANSWER: (B) Yes, Arthur committed fraud in changing the sound system and its components before
delivering the car bought from him.

2008 BAR EXAMINATION


ATTACHMENT; BOND (2008)

No.VI. After his properties were attached, defendant Porfirio filed a sufficient counterbond. The trial court
discharged the attachment. Nonetheless, Porfirio suffered substantial prejudice due to the unwarranted
attachment. In the end, the trial court rendered a judgment in Porfirio’s favor by ordering the plaintiff to
pay damages because the plaintiff was not entitled to the attachment. Porfirio moved to charge the
plaintiff’s attachment bond. The plaintiff and his sureties opposed the motion, claiming that the filing of
the counterbond had relieved the plaintiff’s attachment bond from all liability for the damages.

Rule on Porfirio’s motion.

SUGGESTED ANSWER:

Porfirio‟s motion to charge the plaintiff’s attachment bond is proper. The filing of the counterbond by the
defendant does not mean that he has waived his right to proceed against the attachment bond for
damages. Under the law (Sec. 20, Rule 57), an application for damages on account of improper, irregular,
or excessive attachment is allowed. Such damages may be awarded only after proper hearing and shall be
included in the judgment on the main case. Moreover, nothing shall prevent the party against whom the
attachment was issued from recovering in the same action the damages awarded to him from any
property of the attaching party not exempt from execution should the bond or deposit given by the latter
be insufficient or fail to fully satisfy the award. (D.M. Wenceslao & Associates, Inc. vs. Readycon Trading
& Construction Corp., G.R. No. 154106, 29 June 2004).

Attachment; Garnishment (2008)

No.VII.

(a) The writ of execution was returned unsatisfied. The judgment obligee subsequently received
information that a bank holds a substantial deposit belonging to the judgment obligor. If you are the
counsel of the judgment oblige, what steps would you take to reach the deposit to satisfy the judgment?

SUGGESTED ANSWER:

I will ask for a writ of garnishment against the deposit in the bank (Sec. 9[c], Rule 57).

ALTERNATIVE ANSWER:

I shall move to the court to apply to the satisfaction of the judgment the property of the judgment obligor
or the money due him in the hands of another person or corporation under Sec. 40, Rule 39.
(b) If the bank denies holding the deposit in the name of the judgment obligor but your client’s informant
is certain that the deposit belongs to the judgment obligor under an assumed name, what is your remedy
to reach the deposit?

SUGGESTED ANSWER: I will move for the examination under oath of the bank as a debtor of the judgment
debtor (Sec. 37, Rule 39). I will ask the court to issue an Order requiring the judgment obligor, or the
person who has property of such judgment obligor, to appear before the court and be examined in
accordance with Secs. 36 and 37 of the Rules of Court for the complete satisfaction of the judgment award
(Co vs. Sillador, A.M. No. P-07-2342, 31 August 2007).

ALTERNATIVE ANSWER: The judgment oblige may invoke the exception under Sec. 2 of the Secrecy of
Bank Deposits Act. Bank Deposits may be examined upon order of a competent court in cases if the money
deposited is the subject matter of the litigation (R.A. 1405).

2005 BAR EXAMINATION


(2005) Katy filed an action against Tyrone for collection of the sum of P1 Million in the RTC, with an ex-
parte application for a writ of preliminary attachment. Upon posting of an attachment bond, the court
granted the application and issued a writ of preliminary attachment. Apprehensive that Tyrone might
withdraw his savings deposit with the bank, the sheriff immediately served a notice of garnishment on
the bank to implement the writ of preliminary attachment. The following day, the sheriff proceeded to
Tyrone's house and served him the summons, with copies of the complaint containing the application
for writ of preliminary attachment, Katy's affidavit, order of attachment, writ of preliminary

attachment and attachment bond. Within fifteen (15) days from service of the summons, Tyrone filed
a motion to dismiss and to dissolve the writ of preliminary attachment on the following grounds: (i) the
court did not acquire jurisdiction over his person because the writ was served ahead of the summons;
(ii) the writ was improperly implemented; and (iii) said writ was improvidently issued because the
obligation in question was already fully paid. Resolve the motion with reasons. (4%)

SUGGESTED ANSWER : The motion to dismiss and to dissolve the writ of preliminary attachment should
be denied. (1) The fact that the writ of attachment was served ahead of the summons did not affect the
jurisdiction of the court over his person. It makes the writ, unenforceable. (Sec. 5, Rule. 57) However, all
that is needed to be done is to re-serve the writ. (Onate v. Abrogar, GM. No. 197393, February 23, 1985)

(2) The writ was improperly implemented. Serving a notice of garnishment, particularly before summons
is served, is not proper. It should be a copy of the writ of attachment that should be served on the
defendant, and a notice that the bank deposits are attached pursuant to the writ. (Sec. 7[d], Rule 57)

(3) The writ was improvidently issued if indeed it can be shown that the obligation was already fully paid.
The writ is only ancillary to the main action. (Sec. 13, Rule 57) The alleged payment of the account cannot,
serve as a ground for resolving the improvident issuance of the writ, because this matter delves into the
merits of the case, and requires full-blown trial. Payment, however, serves as a ground for a motion to
dismiss.
2002 BAR EXAMINATION
(2002) The plaintiff obtained a writ of preliminary attachment upon a bond of P1 million. The writ was
levied on the defendant’s property, but it was discharged upon the posting by the defendant of a
counterbond in the same amount of P1 million. After trial, the court rendered judgment finding that
the plaintiff had no cause of action against the defendant and that he had sued out the writ of
attachment maliciously. Accordingly, the court dismissed the complaint and ordered the plaintiff and
its surety to pay jointly to the defendant P1.5 million as actual damages, P0.5 million as moral damages
and P0.5 million as exemplary damages.

Evaluate the soundness of the judgment from the point of view of procedure. (5%)

SUGGESTED ANSWER: The judgment against the surety is not sound if due notice was not given to him of
the applicant for damages. (Rule 57, sec. 20) Moreover, the judgment against the surety cannot exceed
the amount of its counterbond of P1 million.

1999 BAR EXAMINATION


(1999) Distinguish attachment from garnishment. (2%)

SUGGESTED ANSWER: Attachment and garnishment are distinguished from each other as follows:
ATTACHMENT is a provisional remedy that effects a levy on property of a party as security for the
satisfaction of any judgment that may be recovered, while GARNISHMENT is a levy on debts due the
judgment obligor or defendant and other credits, including bank deposits, royalties and other personal
property not capable of manual delivery under a writ of execution or a writ of attachment.

(1999) What are the provisional remedies under the rules? (2%)

SUGGESTED ANSWER: The provisional remedies under the rules are preliminary attachment, preliminary
injunction, receivership, replevin, and support pendente lite. (Rules 57 to 61, Rules of Court).

(1999) In a case, the property of an incompetent under guardianship was in custodia legis. Can it be
attached? Explain. (2%)

SUGGESTED ANSWER: Although the property of an incompetent under guardianship is in custodia legis, it
may be attached as in fact it is provided that in such case, a copy of the writ of attachment shall be filed
with the proper court and notice of the attachment served upon the custodian of such property. (Sec. 7,
last par., Rule 57)

(1999) May damages be claimed by a party prejudiced by a wrongful attachment even if the judgment
is adverse to him? Explain. (2%)

SUGGESTED ANSWER: Yes, damages may be claimed by a party prejudiced by a wrongful attachment even
if the judgment is adverse to him. This is authorized by the Rules. A claim, for damages may be made on
account of improper, irregular or excessive attachment, which shall be heard with notice to the adverse
party and his surety or sureties. (Sec. 20, Rule 57; Javellana v. D. O. Plaza Enterprises Inc., 32 SCRA 281.)

(2001) May a writ of preliminary attachment be issued exparte? Briefly state the reason(s) for your
answer. (3%)
SUGGESTED ANSWER: Yes, an order of attachment may be issued ex-parte or upon motion with notice
and hearing. (Sec. 2 of Rule 57) The reason why the order may be issued ex parte is: that requiring notice
to the adverse party and a hearing would defeat the purpose of the provisional remedy and enable the
adverse party to abscond or dispose of his property before a writ of attachment issues. (Mindanao Savings
and Loan Association, Inc. v. Court of Appeals, 172 SCRA 480).

1996 BAR EXAMINATION


Question 9 (4)

In a case for sum of money, the trial court granted ex-parte the prayer for issuance of a writ of preliminary
attachment. The writ was immediately implemented by the sheriff. The defendant filed a motion to
discharge the writ of preliminary attachment on the ground that it was issued and implemented prior to
service of summons. Plaintiffs opposed arguing that under the Rules of Court, the writ can be applied for
and granted at the commencement of the action or at any time thereafter. In any event, plaintiff argues
that the summons which was eventually served cured whatever irregularities that might have attended
the enforcement of the writ.

How would you rule on the conflicting contentions of the parties?

SUGGESTED ANSWER:

The issuance of the writ of preliminary attachment ex-parte was valid but the implementation thereof
was not effective without the service of summons. The subsequent service of summons did not cure the
irregularities that attended the enforcement of the writ. The writ of attachment should be re-served after
the service of summons (Davao Light and Power Co. Inc v. Court of Appeals, 204 SCRA 343; Onate v
Abrogar, 241 SCRA 659).

1993 BAR EXAMINATION


Question 14:

On May 2, 1992, Precision Inc. filed a verified complaint for recovery of sum of money against Summa
Inc. The complaint contained an ex-parte application for a writ of preliminary attachment.

On May 3, 1992, the trial court issued an order granting ex-parte application and fixing the attachment
bond at P2 Million.

On May 8, 1992, summons, together with a copy of the complaint, the writ of preliminary attachment
and a copy of the attachment bond, was served on Summa Inc and pursuant to the writ, the sheriff
attached properties belonging to Summa Inc.

On July 6, 1992, Summa Inc filed a motion to discharge the attachment for lack of jurisdiction to issue the
same because, at the time the order of attachment and the writ of preliminary attachment were issued
(on May 3 and 8, 1992, respectively), the court had not yet acquired jurisdiction over the person of Summa
Inc. It argued that a writ of preliminary attachment may not issue ex-parte against a defendant before
acquisition of jurisdiction over the latter’s person by service of summons or his voluntary submission to
the court’s authority.
Should the motion be granted? Why?

ANSWER:

No, because a writ of preliminary attachment may be issued ex-parte against a defendant before
acquisition of jurisdiction over the latter’s person by service of summons or his voluntary submission to
the Court’s authority. Section 1, Rule 57 provides that the remedy may be granted at the commencement
of the action or at any time thereafter.

However, the writ does not bind and affect the defendant until and unless jurisdiction over his person is
eventually obtained by the court. Hence, when the summons, together with a copy of the complaint, the
writ of preliminary attachment and a copy of the attachment bond, was served on the defendant, the
sheriff validly attached properties belonging to Summa Inc (Davao Light and Power Co. v. Court of Appeals,
204 SCRA 343; Cuartero v. Court of Appeals, 212 SCRA 260).

1991 BAR EXAMINATION

Upon failure of X to pay the promissory note for 100,000 which he executed in favor of Y, the latter filed
the complaint for a sum of money with application for the issuance of a writ of preliminary attachment
alleging therein that X is about to dispose of his properties in fraud of his creditors.

a) May the court issue the writ immediately upon filing of the complaint and before the service of
summons?

b) If service of summons is indispensable before the writ is issued, is hearing on


the application necessary?

c) If the writ is issued and X filed a motion to quash the attachment, may the
motion be granted ex parte?

Suggested Answer

a) The writ may be issued upon the filing of the complaint and even before the
service of summons upon the defendant (sec. 1 Rule 57)

b) A hearing on the application is not necessary. The application for the writ
need not be heard. It may be issued ex parte. The issuance of summons is
not even indispensable before the writ is issued.

c) The motion to quash may not be granted ex part. A hearing is necessary


(sec.12,13, rule 57)
1988 BAR EXAMINATION

Question:

C, with D as bondsman, secured the attachment of the properties of defendant, X, who by filing a
counterbond, had the attachment dissolved.

Defendant X after judgment was rendered in his favor now holds D liable on his bond for the damages he
(X) suffered for the unwarranted suit and the wrongful and malicious attachment.

D moves to dismiss the damage suit o the ground that the dissolution of the attachment bond void and
ineffective under Sec. 12 of Rule 57, which provides that upon the filing of the counterbond, the
attachment is discharged or dissolved.

(a) Decide the case with reasons.


(b) Who may issue an order of attachment and what are the contents of such order?

Answer:

(a) If the claim for damages was made in the same action before the judgment became final and
executor, IO would deny the motion to dismiss the claim because the dissolution of the
attachment by the filing of a counterbond does not invalidate the attachment bond, which
remains liable for damages suffered by reason of the wrongful attachment. ( Calderon vs. IAC,
Nov. 11, 1987; Del Rosario vs. Nava, 95 Phil. 637)

However, if the claim for damages was made in a separate action (which question seems to
imply because of the word “damage suit”), I would grant the motion to dismiss, because such
a claim can only be made in the same action. (Sec. 20 of Rule 57; Pioneer Insurance & Surety
Co, vs. Hontanosas, 78 SCRA 447).

(b) An order of attachment mat be granted by the judge of any court in which the action is
pending, or by a Justice of the Court of Appeals or the Supreme Court, and must require the
sheriff or other proper officer of the province to attach all the properties of the party against
whom it is issued within the province not exempt from execution, or so much thereof as
maybe sufficient to satisfy the applicant’s demand, the amount of which must stated in the
order, unless such party makes deposit or gives bond as hereinafter provided in an amount
sufficient to satisfy such demand. Besides costs, or in an amount equal to the value of the
property which is about to be attached. Several orders maybe issued at the same time to the
sheriffs or other proper offices of different provinces. ( Sec. 2 of Rule 57).

Question:

How does a Writ of Preliminary Injunction differ from Temporary Restraining Order?

Answer:

A Writ of Preliminary Injunction cannot be b granted without notice to the defendant or adverse
party, whereas a Temporary Restraining Order may be issued if it shall appear from the face of the facts
shown by affidavits or by verified complaint that great and irreparable injury would result to the applicant
before the matter can be heard on notice. (BP 224)

A writ of Preliminary Injunction requires a bond to be filed by the applicant (Sec. 4 of Rule 58),
whereas a Temporary Restraining Order does not.

1986 BAR EXAMINATION

Matiisin made demands to no avail upon Maramot for the payment of the P60,000.00 debt incurred by
the latter. When they met a party, Matiisin asked Maramot why his demand letters were not answered
and why the loan remained unpaid. Maramot told Matiisin that he, Maramot, had always been of the
impression that the P60,000.00 was not a loan intended to be repaid but was a “balato” or gift on the
occasion of Matiisin’s winning
P2,000,000.00 in the sweepstakes draw.

Matiisin filed a collection suit against Maramot and prayed for a writ of preliminary attachment.

In his affidavit, Matiisin stated that, to the best of his knowledge and belief, Maramot was guilty of one
of the grounds for attachment and discussed the ground referred to.

Is there a ground for an attachment? Is the application for a writ of preliminary attachment
adequate? Should it be granted? Explain.

Answer:

There is no ground for an attachment. None of the grounds enumerated in Sec. 1, Rule 57 exists. One
ground is when a party is guilty of fraud in contracting the debt or incurring an obligation. (Dolo Causante)
The fraud in this case however, is in the refusal to pay the debt. (Dolo Incidente) (Fernandez vs Imperial,
44 Phil. 60.)

Alternative Answer:
A ground for attachment exists. From the facts, it may be inferred that Maramot did not really intend to
repay the loan from its inception. It has been held that a debt is fraudulently contracted if at the time of
contracting it, the debtor entertained an intention not to pay.

The application for the writ is not adequate. Matiisin’s affidavit should be made on the basis of personal
knowledge and not “to the best of his knowledge and belief,” which is not sufficient. (Sec. 3, Rule 57;
Sec. 6, Rule 7). Furthermore, the affidavit should also state that a sufficient security for the claim, and
that the amount due or the value of the property to be recovered is as much as the sum for which the
order of attachment is granted above all legal counterclaims. (Sec. 3, Rule 57)

The application should not be granted because no valid ground for attachment exists.

Question:
Enumerate and discuss the different kinds of attachment.

Answer

There are at three kinds of attachment, to wit: (a) preliminary attachment; (b) garnishment; and (c) levy
on execution.

Preliminary attachment is one issued at the commencement of the action or during the progress of the
action. It is a mesne process, liable to be dissolved anytime the judgment upon which may or may not
affect affect the property seized.

Garnishment on the other hand is the process by which the plaintiff seeks to subject to his claim property
of the defendant in the hands of a third person or money owed by such third person to the defendant. In
garnishment, there is no actual seizure of the property. The property remains with the third person,
otherwise called the garnishee. Garnishment, therefore, simply impounds the property in the garnishee’s
possession and maintains its status quo until the main action is finally decided. Garnishment proceedings
are usually directed to personal property. By means of garnishment, the judgment debtor and owing to
him from a stranger to the litigation. By means of the citation, the stranger becomes a forced intervenor;
and the court, have acquired jurisdiction over him by means of the citation requires him to pay his debts
not to his former creditor, but to the new creditor who is creditor the main litigation. It is, therefore, a
case of involuntary novation by the substitution of one creditor for another. (See Tayabas vs. Sharuff, 41
Phil 382).

On the other hand, levy on execution is the process by which the property of the judgment debtor is
subjected to a lien for the satisfaction of the final judgment. Levy on the execution is a preliminary step
to the sale on execution of the property of the judgment debtor.

Alternative Answer

There is only one kind of attachment, preliminary attachment. A levy on execution of a final and
executory judgment is not an attachment. Garnishment may refer to preliminary attachment or levy
on execution.

Question:

A filed in the Court of First Instance of Cebu City a verified petition for injunction against the Director of
the Bureau of Telecommunications to prevent him from installing a new telephone system in Cebu City
in violation of A’s franchise. A motion to dismiss the petition was filed alleging, among others, that the
court has no jurisdiction over the respondent who is holding office in Manila. Is the contention correct?
Explain.

Answer

The contention of the Director of Telecommunications is not correct. Its jurisdiction over the person
of the respondent is acquired by means of service of summons. The service having been made, the
Court of First Instance of Cebu has acquired jurisdiction over the person of the defendant Director of
Telecommunications

It is true that defendant has his office in Manila. What is sought to be restrained, however, are acts to be
committed not in the City of Manila but in the City of Cebu. The injunction sought is for the purpose of
preventing the defendant from installing the telephone system in Cebu City.

It is true that the preliminary injunction that may be granted by a court of First Instance under said Sec
2 of Rule 58, is in its application, co-extensive with the territorial boundaries of the province or district
in said court sits.
But since the injunction does not purport to restrain acts outside the City of Cebu, it is valid and the
court has jurisdiction to issue it.

Alternative Answer

The contention of the Director of Telecommunications is not correct. Its jurisdiction over the person of
the respondent is acquired by means of service of summons. The service having been made, the Court
of First Instance of Cebu has acquired jurisdiction over the person of the defendant Director of
Telecommunications.

Question:

Pending final judgment in an action for recovery of personal property: (1) May the plaintiff apply for
immediate delivery of the property in question?
(2) In the affirmative, what requisites must the plaintiff comply with in order to make his remedy available
to him? (3) What is the ancillary remedy called?
(4) May this remedy be availed of in the Municipal Court assuming that the value of the property in
litigation does not exceed P10,000.00, exclusive of of interests and costs?

Answer

(1) Yes, the Rules provide that such a remedy may be applied for at the commencement of the
action or at any time before answer. (Section 1 Rule 60)

(2) The plaintiff must show by his own affidavit of that some other person who personally knows
the facts:

a) That the plaintiff is the owner of the property claimed, particularly describing it, or is
entitled to the possession thereof;

b) That the property is wrongfully detained by the defendant, alleging the cause of detention
thereof according to his best knowledge, information and belief;

c) That is has been taken for a tax assessment or fine pursuant to law, or seized under an
execution or an attachment against the property of the plaintiff, or if so seized, that it is
exempt from such seizure; and

d) The actual value of the property.

The plaintiff must also give a bond, executed to the defendant in double the value of the property as
stated, in the affidavit aforementioned, for the return of the property to the defendant if the return
thereof be adjudged, and for the payment to the defendant or such sum as he may recover from the
plaintiff in the action. (Section 2 of Rule 60)

(3) Delivery of personal property or replevin.

(4) Yes, provided the amount of damages claimed added to the value of the property in litigation
does not exceed P10,000.00 inclusive of interest and costs. (Section 88 of Judiciary Act)

1985 BAR EXAMINATION


Question No. 6

Avenue Lumber, the supplier of construction materials of Builders, Inc. which has a running
account with the former, was paid by the latter P100,000.00 in check. The check when deposited was
dishonored. Avenue notified Builders but despite notice, Builders failed to redeem the dishonored check
much less deposit the necessary amount to answer for its value. Hence, Avenue Lumber sued Builders for
collection and simultaneously applied for a writ of attachment on the ground of fraudulent issuance of
the aforementioned check.

(A) As a judge, will you grant the attachment prayed for?

(B) As counsel for Builders, Inc. what remedial steps will you undertake against the move to
attach its properties? Discuss.

ANSWER:

(A) No. A writ of attachment could be issued if Builders, Inc. had been guilty of fraud in
contracting the debt or incurring the obligation. In this case Builders, Inc. had a running
account with Avenue Lumber. This means that the sales were made on credit. The failure of
Builders, Inc. to make good the dishonored check was a subsequent fraud and could not be
the basis for a writ of attachment.

(B) If the application for a writ of attachment were set for hearing, I would oppose the move to
attach its properties for the reason above stated. If the writ of attachment were issued, I
would file a petition for certiorari to annul the order granting the writ on the ground of grave
abuse of discretion and/or, I would file a counter bond to discharge the attachment.

ALTERNATIVE ANSWER:

(B)If the writ of attachment were issued ex-parte I would file a motion to discharge the
attachment on the ground that it was improperly or irregularly issued. If such motion is denied, I would
file a petition for certiorari to annul the order granting the writ on the ground of grave abuse of discretion,
and/or I would file a counter bond to discharge the attachment.

1983 BAR EXAMINATION


Question No. 5

The money judgment for the sum of P1,000,000 in favour of plaintiff in Civil Case No. 1893 entitled
“Financing Investments, Inc. VS Hilario Trinidad” had become final and executor. Subsequently, Atty.
Lapid, the plaintiff’s lawyer, obtained a writ of execution which he asked the Provincial Sheriff to serve
and execute. Reporting that he found no leviable asset of the defendant, the Sheriff returned to the court
the writ of execution unsatisfied.

The months thereafter, the Financing Investments, Inc. informed Atty. Lapid that its own
investigation disclosed that Hilario Trinidad and his family reside in a plush condominium in Makati which
they rent for P100,000.00 a month ; that the family drives around in five expensive cars registered in the
names of different individuals ; and that Hilario Trinidad has acquired the reputation of being a big spender
among the nightclubs along Roxas Boulevard. On the basis of that information, the Financing Investments,
Inc. requested Atty. Lapid to find out how Hilario Trinidad was financing his lifestyle and that of his family
and thereafter to take the appropriate measure so that the income and property of Hilario Trinidad could
be applied to the satisfaction of its judgment credit.

What judicial remedy should Atty. Lapid avail himself so that he could comply with the request of
his client? Describe the different procedures that Atty. Lapid must take for a full availment of that judicial
remedy.

EXAMINER’S ANSWER:

Atty. Armando Lapid should file a motion in Civil Case No. 1893 informing the court that the writ
of execution was returned by the sheriff unsatisfied and praying that the court issue an order requiring
defendant Trinidad to appear, at a specified time and place, before the court, or a commissioner
appointed by the court, and answer all questions concerning his property and income. During that
hearing, Atty. Lapid can ask defendant Trinidad all questions which would establish how, and the sources
thereof, defendant Trinidad is financing the lifestyle of his family. In the event that the hearing discloses
the sources of income and the assets of Trinidad, Atty. Lapid may thereafter request the court to issue an
order directing that such income and assets, except those exempt from execution and necessary for the
support of Trinidad’s family, be applied in satisfaction of the judgment. Should defendant Trinidad
disobey the order, the court may punish him for contempt.

QUESTION NO. 14:

Daniel Chan owns a house and lot at Forbes Park, Makati, where his wife and children reside. He
is the Chief Executive Officer of various family corporations where he owns 20% of the respective capital
stocks. These family corporations owe several banks the total sum of P2.5 billion, with Chan as a solidary
co-debtor.

After Chan has carefully manipulated the finances of the family corporations and diverted their
funds to his account in a Swiss bank, he flees from the Philippines and now resides at 127 Rue Duphine,
Zurich, Switzerland. The banks concerned now retains the services of Atty. Ramon Castillo for the purpose
of filing a suit in the Philippines against Daniel Chan on his obligation as a solidary co-debtor on the loans
of the family corporation. One of the procedural problems facing Atty. Castillo is the method of effecting
a valid service of summons upon Daniel Chan, now residing in Switzerland, to enable the Philippine courts
to acquire jurisdiction over his person.

Describe the remedies and procedures, and the supporting grounds thereof that Atty. Castillo
should follow as would enable him to effect a valid service of summons on Daniel Chan.

EXAMINER’S ANSWER:

Upon filing the complaint against Daniel Chan, Atty. Ramon Castillo should petition the court for
the issuance of a writ of preliminary attachment. The ground for the issuance of a writ of attachment is
that the case is against a party, Daniel Chan, who now permanently resides out of the Philippines,
specifically in Switzerland. Once the writ of attachment is issued, Atty. Castillo should have the same
served and levied on all assets of Daniel Chan in the Philippines including his house and lot at Forbes Park,
and his equity shares in the family corporations. Thereafter, Atty. Castillo should ask the court for
permission to effect an extraterritorial services of summons on defendant Chan on the ground that he
does not reside and is not found in the Philippines and his assets in the Philippines had been attached.
With the permission of the court, service of summons can then be effected as ordered by the court either
by the personal service in Switzerland of the summons and complaint or by publication in a newspaper of
general circulation in such places and for such time as the court may order, and mailing to the Swiss
address of Danilo Chan, of copies of the order of publication, the summons and the complaint.

COMMITTEE’S ANSWER:

Atty. Castillo, upon the filing of the complaint, should apply to the court for a writ of preliminary
attachment on the ground that Daniel Chan resides out of the Philippines. (Sec 1(f) of Rule 57).

Upon the issuance of the writ of attachment, Atty. Castillo should request the sheriff to levy
attachment on the house and lot of Daniel Chan at Forbes Park, Makati. By virtue of such attachment,
the court acquires jurisdiction over the res. (Asiatic Petroleum VS Co Quico, 69 Phil 433)

Extraterritorial service of summons, through personal service, publication, or in any other manner
the court may deem sufficient, shall be made on Daniel Chan. (Sec. 17 of Rule 14). The purpose of such
extraterritorial service of summons is to satisfy the constitutional requirement of due process, and not to
acquire jurisdiction over his person. (Banco Espanol VS Palanca, 37 Phil. 921 ; Quasha et al. VS Juan, 118
SCRA 505.)

1982 BAR EXAMINATION


QUESTION NO. 15:

Edward filed a complaint against Liza for accounting of the money received by her as
administratrix of Edward’s hacienda. In his complaint, Edward prayed for preliminary attachment, alleging
that Liza was about to depart from the Philippines. Attached to the complaint was an affidavit executed
by Marilyn to the effect that Liza told her that she, Liza, was planning to leave for Singapore in a few days.
If you were the judge, would you grant the prayer for preliminary attachment? Why?

ANSWER:
No, because the mere fact that Liza was about to depart from the Philippines is not a ground for
granting preliminary attachment. Facts and circumstances should have been stated in the affidavit to
show intent to defraud her creditors in order to justify such grant.

1981 BAR EXAMINATION:

QUESTION NO. 15:

“Y” is a stockholder of a local corporation. “Y” owns 20% of the shares of said corporation. “Y”
defaults on a manufacturing contract with “Z”. “Z” sues for specific performance and damages and, on
the ground that “Y” is fleeing from the country to avoid creditors, seeks to attach 20% of a parcel of land
that belongs to the corporation.

Can “Z” secure such an attachment granting that the averments of his petition are sufficient?
Reasons.

ANSWER:

No, “Z” may not attach property which does not belong to the defendant “Y”. The parcel of land
sought to be attached belongs to a corporation which is a distinct entity separate and apart from its
stockholders. “Y” owns only 20% of the shares of the corporation and there is no showing that the case
is an exceptional one where the corporate fiction may be disregarded.

1980 BAR EXAMINATION


QUESTION NO. 7:

A writ of attachment was issued by the Court and, on the basis thereof, defendant’s credit balance
with a stockbroker was garnished.

Can the Court order the stockbroker to surrender that credit balance to plaintiff or to the sheriff?

ALTERNATIVE ANSWER:

1. If defendant’s credit balance represents a sum of money due him from the stockbroker, it is
subject to garnishment.

2. However, if defendant’s credit balance is an overdraft account granted him by the stockbroker, it
is not a credit subject to garnishment because it is a loan.

3. Assuming that the credit balance is a property of defendant, the court may not order the
stockbroker to surrender it to plaintiff or to the sheriff upon garnishment. It is only after the
judgment against defendant has become final and executory that such amount garnished may be
ordered delivered to plaintiff or the sheriff.

1978 BAR EXAMINATION


QUESTION NO. VI-a:

X filed a complaint in the Court of First Instance of Manila against Y for the recovery of the sum of
P90,000.00. X at the same time, also prayed for the issuance of an order of preliminary attachment against
Y, and included in his complaint his affidavit stating, among others, that Y was disposing of his properties
with intent to defraud X. The Court immediately issued the writ of preliminary attachment ex-parte. Y
moved to discharge the attachment on the ground that it was irregularly issued, in that Y was not notified
at all of such application or about the time and place of the hearing thereof, in gross violation of the Rules
and his right to due process of law.

As counsel of X, prepare an opposition to Y’s motion to discharge attachment.

ANSWER:

Y was not entitled to notice of the application for a writ of preliminary attachment. Since the
application was made at the commencement of the action or upon the filing of the complaint, as provided
by Section 1 of Rule 57, the writ may be issued ex-parte.

ALTERNATIVE ANSWER:

The statement to the contrary appearing in Blue Green Waters, Inc. VS Sundiam, September 13,
1977, 79 SCRA 66, should also be given same credit.

1975 BAR EXAMINATION


QUESTION NO. XV

Enumerate and discuss the different kinds of attachment.

ANSWER:

There are at least three kinds of attachment, to wit:

a. Preliminary attachment

b. Garnishment

c. Levy on execution

Preliminary attachment is one issued at the commencement of the action or during the progress of the
action. It is a mesne process, liable to be dissolved anytime the judgment upon which may or may not
affect the property seized.

Garnishment on the other hand is the process by which the plaintiff seeks to subject to his claim property
of the defendant in the hands of a third person or money owed by such third person to the defendant. In
garnishment, there is no actual seizure of the property. The property remains with the third person,
otherwise called the garnishee. Garnishment, therefore, simply impounds the property in the garnishee’s
possession and maintains its status quo until the main action is finally decided. Garnishment proceedings
are usually directed to personal property. By means of garnishment, the judgment creditor may reach
credits belonging to the judgment debtor and owing to him from a stranger to the litigation. By means of
the citation, the stranger becomes a forced intervenor ; and the court, have acquired jurisdiction over him
by means of the citation, requires him to pay his debts not to his former creditor, but to the new creditor
who is creditor in the main litigation. It is, therefore, a case of involuntary novation by the substitution of
one creditor for another. (See Tayabas VS Sharuff, 41 Phil. 382).
On the other hand, levy on execution is the process by which property of the judgment debtor is subjected
to a lien for the satisfaction of the final judgment. Levy on execution is a preliminary step to the sale on
execution of the property of the judgment debtor.

ALTERNATIVE ANSWER:

There is only one kind of attachment, preliminary attachment. A levy on execution of a final and
executory judgment is not an attachment. Garnishment may refer to preliminary attachment or levy on
execution.

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