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%)
Discuss the three (3) Stages of Court Diversion in connection with Alternative Dispute Resolution. (5%)
Suggested answer only. Not an official answer and not legal advice.
B's motion to lift the attachment should be granted; while the three stages of Court Diversion in ADR are CAM, JDR, and Court-Appealed Mediation. Under Rule 57, Sec. 5 of the Rules of Court, no levy on attachment
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Quick check
What is required under Rule 57 for a writ of preliminary attachment to be validly enforced against a defendant's property?
Under Rule 57, Section 5, enforcement of preliminary attachment requires prior or contemporaneous service of summons on the defendant.
What is the legal effect of a sheriff levying on a defendant's property under preliminary attachment before serving summons?
A levy on preliminary attachment enforced prior to service of summons is void ab initio and cannot be cured by subsequent service.
What is the first stage of Court Diversion in Philippine Alternative Dispute Resolution?
Court-Annexed Mediation conducted by Philippine Mediation Center mediators is the initial stage of court diversion.
Who acts as the mediator-conciliator during the Judicial Dispute Resolution (JDR) stage of court diversion?
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What procedural remedy should a defendant pursue when preliminary attachment is enforced prior to service of summons?
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Learn more about these topics
1. Preliminary Attachment Enforcement
Under Rule 57, Section 5 of the Rules of Court, no levy on preliminary attachment shall be enforced unless preceded or contemporaneously accompanied by service of summons on the defendant. Although a court acquires jurisdiction over the main action upon filing of the complaint and payment of legal fees, it cannot enforce a writ of preliminary attachment without prior or contemporaneous service of summons. A levy made prior to service of summons is void and legally ineffective, and subsequent service of summons does not retroactively cure the defect.
2. Court Diversion Stages
Court Diversion under the Alternative Dispute Resolution (ADR) framework in the Philippines proceeds through three distinct stages designed to encourage out-of-court settlements. The first stage is Court-Annexed Mediation (CAM), conducted by accredited mediators of the Philippine Mediation Center. If CAM fails, the case enters Judicial Dispute Resolution (JDR), where the trial judge acts as a mediator-conciliator. If JDR is unsuccessful, the case proceeds to trial before another judge, and if appealed, it enters Court-Appealed Mediation at the appellate level.
3. Enforceability of Attachment
The requirement of prior or contemporaneous service of summons protects the constitutional right to due process of the property owner. Because preliminary attachment is a harsh and extraordinary provisional remedy, strict compliance with statutory procedure is required. Where a sheriff attaches properties before serving summons on the defendant, the attachment is void ab initio. The proper procedural remedy for the aggrieved defendant is to file a motion to discharge or lift the attachment based on the illegal enforcement.