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?
Suggested answer only. Not an official answer and not legal advice.
(A) No, Agente is incorrect; and (B) no, the writ of preliminary attachment was not properly executed. Under Rule 57 of the Rules of Court, a writ of preliminary attachment may be issued ex-parte prior to service of summons. However, no
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Quick check
May a trial court validly issue an ex parte order of preliminary attachment prior to service of summons upon the defendant?
A court may validly grant an order of preliminary attachment ex parte prior to service of summons.
What requirement must be satisfied before a sheriff can validly enforce a levy under a writ of preliminary attachment?
A levy on preliminary attachment requires contemporaneous service of summons and complaint upon the defendant.
What is the legal status of a levy on attachment executed by a sheriff one day before serving summons on the defendant?
A levy executed prior to the service of summons is null and void for violating contemporaneous service rules.
What is the proper ground for a motion to discharge when a levy on attachment is executed prior to service of summons?
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Which ground under Rule 57 justifies the application for preliminary attachment against an agent who misappropriated proceeds of sale?
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Learn more about these topics
1. Ex Parte Issuance
Under Rule 57, Section 2 of the Rules of Court, a writ of preliminary attachment may be validly issued ex parte even prior to the service of summons upon the defendant. The court acquires jurisdiction to issue the provisional order of attachment upon the filing of the application, affidavit, and required applicant's bond. The stage of issuance is distinct from the stage of enforcement or levy, and prior acquisition of jurisdiction over the person of the defendant is not a prerequisite for the grant of an ex parte order of attachment.
2. 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, complaint, application for attachment, order of attachment, and applicant's bond upon the defendant. This requirement of contemporaneous service ensures due process and establishes jurisdiction over the person of the defendant before or at the moment the levy takes effect. Enforcement of a writ of attachment prior to serving summons renders the levy invalid, null, and void.
3. Invalid Levy Remedy
When a writ of preliminary attachment is validly issued but improperly enforced due to premature levy before service of summons, the proper remedy of the defendant is to move for the discharge or lifting of the invalid levy rather than attacking the issuance of the writ itself. The improper execution does not retroactively invalidate the underlying judicial order granting attachment. The sheriff must re-serve or properly execute the writ in strict compliance with the rule on contemporaneous service of summons.