The preliminary attachment

Admittedly, litigation in the Philippines takes some time. When a case is filed with the court, litigants invariably wait quite a month of Sundays before a decision is handed down. In addition to the already clogged court dockets, the delay is attributable to the amount of evidence presented by the parties. Of course, hearings are entailed for the court to receive evidence and testimonies presented by parties. The more the evidence and witnesses, the more the hearings. Not only that, invariably some parties employ dilatory tactics to unnecessarily prolong the inevitable. When they realize things are no longer in their favor, they move for postponements just so they can buy time.

What plaintiff should have done at the inception of the case was to resort to the provisional remedy of preliminary attachment.

So, in this long wait, it is possible that by the time the court renders a decision, say two or three years down the road, the defendant already has nothing to satisfy the decision. Even if the court grants plaintiff a huge monetary award, the victory clearly remains merely on paper. No matter what the plaintiff does to defendant, if the latter has zero in his name, he can no longer be compelled to pay up. Good, probably if he was made to pay when he still had a sizeable property, which could answer for what the court has adjudged him liable. And when was that? Back when the action was instituted. But now, too late.

Could plaintiff have had an option to avert this situation? While he may rejoice having won the case, he has actually nothing to recover. What plaintiff should have done at the inception of the case was to resort to the provisional remedy of preliminary attachment. “At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered…”(Section 1, Rule 57, Rules of Court).

When a defendant is about to leave the country to defraud his creditors in a money claim arising from law, contract or negligence, a party can ask that his properties be attached.

What attachment does is it already takes hold of the properties of the defendant at the beginning, during and/or any time before judgment is rendered. That way, the defendant cannot dispose of them anymore. So, when the time comes, his property will be made to answer for his liability. And the plaintiff is not left with an empty victory. He rejoices after his long wait and sees the fruit of his labor. If after the proceedings, the court orders defendant to pay plaintiff P5 million, even if the former does not have that amount in his bank account, his properties worth that much (preliminarily attached by the court), will answer for that.

But, please bear in mind that not in all cases can a preliminary attachment be granted. The rules provide for certain cases when it is warranted. In all, there are six instances. Here are some of them.

When a defendant is about to leave the country to defraud his creditors in a money claim arising from law, contract or negligence among others, a party can ask that his properties be attached. Or attachment can be applied for against a defendant who is intentionally disposing of his properties, again with intent to defraud his creditors. Also, attachment can be had against a defendant, who owns properties in the Philippines, but actually resides outside the country.

What if defendant wants to free his property from attachment, is he afforded any remedy?

Assuming there is, will it again deprive plaintiff of recovery at the end of the day? Yes, defendant can have the attachment discharged without rendering plaintiff holding an empty bag later on.

“After a writ of attachment has been enforced, the party whose property has been attached… may move for the discharge of the attachment wholly or in part on the security given. The court shall, after due notice and hearing, order the discharge of the attachment if the movant makes a cash deposit, or files a counter-bond executed to the attaching party… in an amount equal to that fixed by the court in the order of attachment…”(Section 12, Rule 57).

“When judgment has become executory, the surety or sureties on any counter-bond given…to secure the payment of the judgment shall become charged on such counter-bond and bound to pay the judgment obligee upon demand under the judgment, which amount may be recovered from such surety or sureties after notice and summary hearing…”(Section 17, Rule 57).

In this case, even if defendant’s property is released, someone (the surety) remains liable in case defendant has accountability.

So, either way, plaintiff has something to recover. And certain at that. In the end, despite all the wait, justice is served. That makes the wait worth it, doesn’t it?