On February 3, 2018, Danny Delucia, Sheriff of the RTC of Makati, served the Order granting the ex-parte application for preliminary attachment of Dinggoy against Dodong. The Order, together with the writ, was duly received by Dodong. On March 1, 2018, the Sheriff served upon Dodong the complaint and summons in connection with the same case. The counsel of Dodong filed a motion to dissolve the writ.
(a) Can the preliminary attachment issued by the Court in favor of Dinggoy be dissolved? What ground/s can Dodong’s counsel invoke? (2.5%)
(b) If Dodong posts a counter bond, is he deemed to have waived any of his claims for damages arising from the issuance of the Order and writ of attachment? (2.5%)
Suggested answer only. Not an official answer and not legal advice.
(a) Yes, the preliminary attachment may be dissolved for irregular enforcement. (b) No, posting a counter-bond does not waive claims for damages.
Under Rule 57, Sections 5 and 13 of the Rules of Court, an attachment enforced without prior or contemporaneous service of summons is irregularly enforced and subject to discharge. Furthermore, jurisprudence holds that posting a counter-bond is merely a speedier mode of releasing attached property and does not constitute a waiver of claims for damages.
Here, the writ was served on February 3, 2018, but summons was served only on March 1, 2018, violating the contemporaneous service rule. Moreover, Dodong's counter-bond simply stands in place of the attached property without waiving his right to claim damages against Dinggoy's bond.
Therefore, the attachment may be dissolved due to irregular enforcement, and posting a counter-bond does not waive Dodong's claim for damages.
This is not an official scoring system and carries no weight with the Supreme Court or any bar review provider. It measures how much of the suggested answer's wording your response covers, not whether your reasoning is correct. For practice only.
Quick check
What is required under Rule 57, Section 5 before a writ of preliminary attachment may be legally enforced?
Enforcement of a writ of attachment requires prior or contemporaneous service of summons upon defendant.
What is the legal effect of enforcing a writ of preliminary attachment prior to serving summons on the defendant?
Enforcing a writ of attachment prior to serving summons constitutes irregular enforcement subject to dissolution.
Under Rule 57, Section 13, on what specific ground may a defendant move to dissolve a writ of attachment?
Rule 57, Section 13 provides that a writ may be dissolved if improperly or irregularly issued or enforced.
Does posting a counter-bond by the defendant waive claims for damages arising from wrongful attachment?
Posting a counter-bond is a speedier mode of releasing property and does not waive claims for damages.
When may an ex-parte application for a writ of preliminary attachment be granted by the trial court?
An application for preliminary attachment may be granted ex-parte at the commencement of the action or at any time before judgment.
Learn more about these topics
1. Contemporaneous Service Rule
Under Rule 57, Section 5 of the Rules of Court, no levy on attachment shall be enforced unless preceded or accompanied by service of summons, copy of the complaint, application for attachment, order of attachment, and attachment bond. While an ex-parte application for preliminary attachment may be granted before the court acquires jurisdiction over the defendant, the actual enforcement of the writ requires prior or contemporaneous acquisition of jurisdiction through service of summons. Enforcement without contemporaneous service of summons constitutes irregular enforcement, rendering the attachment subject to dissolution.
2. Dissolution for Irregularity
Under Rule 57, Section 13 of the Rules of Court, an attachment order may be discharged on the ground that it was improperly or irregularly issued or enforced. Irregular enforcement occurs when procedural requisites, such as contemporaneous service of summons upon the defendant, are violated during the levy. The defendant may file a motion to dissolve the writ specifically invoking irregular enforcement without needing to post a counter-bond. The court must grant the dissolution if the applicant fails to justify the regularity of the attachment's enforcement.
3. Counter-Bond Effect
Under Rule 57, Section 12 of the Rules of Court, a defendant whose property has been attached may secure the discharge of the attachment by posting a counter-bond. Posting a counter-bond is merely a speedier statutory mechanism to release property from custody and substitute it with financial security. It does not operate as a waiver of the defendant's right to claim damages against the applicant's attachment bond for improper or illegal attachment. The defendant remains fully entitled to claim damages incurred as a result of the wrongful writ.