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
Suggested answer only. Not an official answer and not legal advice.
(B) writ for preliminary attachment is the correct answer. Under Rule 57, Section 2 of the Rules of Court, an order of preliminary attachment may be issued ex parte, dispensing
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Quick check
Which provisional remedy may be issued by the court ex parte without prior notice and hearing to the adverse party?
A writ of preliminary attachment may be issued ex parte to prevent the debtor from fraudulently disposing of assets before execution.
Why does Rule 57 allow an order of preliminary attachment to be granted ex parte?
Preliminary attachment is allowed ex parte so that notice will not prompt the debtor to hide or dispose of assets.
Which of the following provisional remedies strictly requires prior notice and hearing before it can be granted?
A writ of preliminary injunction strictly requires prior notice and a formal hearing before it may be issued.
What must an applicant for preliminary attachment submit to the court prior to the issuance of the writ?
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Under Rule 60 of the Rules of Court, when may a party apply for a writ of replevin?
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Learn more about these topics
1. Ex Parte Attachment
Under Rule 57, Section 2 of the Rules of Court, an order of preliminary attachment may be issued ex parte, dispensing with prior notice and hearing. Prior notice is not required because alerting the adverse party could prompt the fraudulent disposal, concealment, or removal of properties intended to satisfy a potential judgment. The applicant must strictly satisfy the statutory requirements by filing a verified application, executed affidavit, and the required applicant's bond before the writ may be issued by the court.
2. Hearing Requirements
Unlike preliminary attachment, provisional remedies such as preliminary injunction and support pendente lite generally require notice and hearing before issuance. A preliminary injunction cannot be granted without notice and a formal hearing, as it directly restrains or mandates specific acts by the adverse party. Similarly, support pendente lite requires notice and hearing to determine the legal obligation to support and the financial capacity of the obligor, ensuring due process is strictly accorded to both parties prior to issuing provisional relief.
3. Replevin and Notice
A writ of replevin under Rule 60 allows the recovery of personal property upon the filing of an application, affidavit, and bond. While replevin may be applied for at the commencement of the action or at any time before answer, courts require strict compliance with bond and affidavit requirements. Obtaining provisional remedies ex parte remains an exceptional rule limited primarily to preliminary attachment to prevent irreparable frustration of prospective judicial execution against absconding or fraudulent debtors.