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ATTY. JOEL FAMADOR
Provisional Remedy
CUSTODIA LEGIS- The latin phrase simply means that the property is taken into the court’s
custody wherein the said res cannot be distrained nor otherwise interfered with by a private
person.
PURPOSE of preliminary attachment
To seize the property of the final judgement and to hold in custodial legis while the action is
pending for purposes of sayisfying the said judgement.
To enable the court to acquire jurisdiction over the res or property where service over the
person of the defendant cannot be effected.
Stages
OWI
1.The court issues the order granting the application
2.The writ of attachment is issued pursuant to the order granting the writ
3.The writ is implemented.

1
REQUISITES for the issuance of an order of writ of preliminary attachment
1. Ultimate Facts-The complaint has sufficient cause of action;
; 2. The case is one of those mentioned in Sec. 1 of Rule 57 (Grounds of issuance of writ of
attachment);
3. There is NO Other Sufficient Security for the claim sought to be enforced by the action;
Security – mortgage, pledge or guarantee (specific) – no known asset left Ex: State that
there is an existing mortgage.
4. The amount due to the applicant, or the value of the property the possession of which he
is entitled to recover, is as much as the sum for which the order is granted above all legal
counterclaims. (payment for actual damages)
5. Complaint should be done under oath (jurat) or attach a separate affidavit of merit.
6. Submit the attachment bond (surety bond).

As a council of a Client, and I have found a sufficient cause of action and grounds to file the writ
of preliminary attachment I will file the writ of the preliminary action during the
commencement of the main action by incorporating the writ in the Complaint.

May file after the filing of the complaint when a property is available to be attached in the
writ,
Ask plaintiff , if the defendant has assets left to be attached in the writ of preliminary
attachment, Something might develop during the case and a ground to file when the defendant
is trying to dispose or sell his property. File a motion to the issuance of the writ of preliminary
attachment.

File a motion to examine a person who has credit in favor for the defendant to , to be examined
under oath as remedy to the plaintiff if he wants to know there is a person holding a
credit in behalf of the defendant.ask Subpoena from the court, CALL the defendant itself
 in pursuant under section 10 , if they lie they are under the penalty of purgery., more
thann 6 years of prison…

False testimony- those who testify as witness

Lying under oath-perjury

SHOTGUN approach- scatter shot… hoping to hit something

If u suspect a bank to hold a property belonging to the defendant holding deposit in behalf of
the defendant.
Subpoena the bank to examine under section 10.
CLERK OF COURT- APPROVES THE BOND AS SURETY bond after the court order for the issuance
of writ of preliminary attachment
SHERIFF – is the one who will implement it and serve it to the bank for example like
garnishment.

WRIT is served during the pay-day as the property does not exist before

When you apply the writ of attachment without any idea , how court determine the amount of
the Bond.
The Bond is based on the
Principal claim plus liquidated damages or actual damages can be proved in court with evidence
such as receipts.w

The defendant’s remedy is a counter bond and file a motion to reduce.

Substitution of property and lift the writ will risk the Senior lien of the plaintiff.

After summons and complaint because it is just ancillary remedy before the court acquire the
person of the defendant

The judge should see that the allegations has sufficient cause of action ,the allegations has no
sufficient security{statement of ultimate facts] since the writ is granted without a hearing or ex
parte. Allegations are done Underoath with merit attached… once the court will decide that
attachment will be granted then the court will determine the attachment bond on the basis of
the damages claimed or the total claim based on the liquidated damage or actual damages that
can be prove through documents. Including principal claim. Once the court is satisfied the order
will be given to the clerk of court, THE OFFICE of the clerk of court has the list of the credited
bonding companies if you’re the applicant the company must be accredited otherwise the court
will not honor. Once the branch clerk of court approves will issue the writ and given to the
branch sheriff to implement and call the plaintiff.

The summons will be given to the defendant. Having several remedy against the
Attachment .enumerated as follows,
REMEDY for Defendant
1.File a motion to Discharge the attachment for having an inValid Ground under Rule 57 Sec.1
of , the Bond submitted is Defective, The issued bond does not come from accredited Bonding
company .Allegations are not done under Oath
2. Petition of certiorari
3. Apply a Writ of preliminary Injunction to the Court of Appeals.
4.The Defendant will File a Counter Bond( No good Grounds to Quash the writ or Discharge)
Purpose of CounterBond- is to Free the Property to be Attached by Substituting the Property to
be Attached.Giving the counterBond is to take the place the property to be attached.
Consequently the writ of attachment will be LIFTED since the counterbond will take the place of
the property to be attached.

Plaintiff Applicant- Applies the Writ..

Duties of the Court once the remedy is submitted,

1. Court will issue an order of hearing for the motion to discharge and instruct the plaintiff
applicant to present the evidence that the writ is filed on good grounds.
The Burden of Proof Lies to the Plaintiff Applicant to present the Evidence that the Writ is
Filed on Good Grounds.
Types
Surety Bond- Bonding Company is accredited by the Supreme Court
Cash Bond

Clerk of Court- Issues the Writ

Branch Sheriff- Execute and Implement the Writ
Writ will cause Incumbrance to the Property Impeding it to be Sold to The Public.

General Rule.

If the writ is served before the service of the summons , there will be no effect since it was
not done simultaneously to the summons and complain hence the writ is not Valid.

If the defendant is not the owner of the property to be attached, the sheriff shall not
proceed go to the plaintiff applicant and inform him, the plaintiff applicant shall post a
Bond to protect the sheriff. The 3rd party claimant here

If the defendant does not own the property to be attached by the branch Sheriff.
3rd party Remedy
Main Action
PROVISIONAL REMEDY OF INJUNCTION to stop the sheriff from attaching the property.
1.Will file a Claim to the property to be attached
it will File against the Sheriff to put his claim of ownership
2. 3rd party claimant will File a motion to intervene
when the 3rd party intervenes in a court that precide over the writ and receive an unfavorable
decision the remedy would be to file it in the court of appeals as it would violate the principle
of Res judicata in filing in the same court involving same party ,Subject matter, and controversy.

Counterbond- answers for the Judgement when the court ruled a favorable decision to the
plaintiff.

Judgement will lose the jurisdiction of the trial court over the claim, should be done in the court
of appeals who has the jurisdiction after judgement.

Attaching Bond- limited only to the value cover to the Bond, the amount stated would you be
able to get that , the answer is yes, the court can still allow you to recover damages more than
to the attached bond

INJUNCTION-Cannot be obtained without a Hearing or Ex Parte(exemption when Judge orders a

restraining order as it is prohibitory- prove to executive Judge THAT THERE is an extreme
urgency to order a restraining order.)
Order granted at any stage of an action or proceeding prior to judgement in requiring a party
or a court or a person to either refrain from a particular act or to require the performance of a
particular act
It needs a Hearing as a general rule it is not ex parte issued after notice and hearing except for
restraining order which is a type of prohibitory injunction.
Prohibitory injunction- refrain from a particular act
Or
Mandatory Injunction- require the performance of a particular act

Restraining order cannot be issued by the trial court judge without notifying the defendant the
raffle shall be done with the defendant otherwise it is void.

File Breach of contract and and apply for the writ of preliminary injunction with a restraining
order to refrain a person from deeming the contract ineffective

The Burden of proof lies in the defendant for injunction IN THE RULES OF COURT

Evidence are presented in affidavit, done under oath or in the complaint

Judicial affidavit- testimonial complaint , filed in proper form and substance.

Remedy- Post a CounterBond.

Lift the writ of the preliminary injunction is discretionary in the trial court.

Violation permanent stop the foreclosure sale, second foreclosure sale while the case was
pending.But the Defendant never notify the court. They got the Title in their name.Plaintiff
asked contempt to the court while injunction was still effective in that time. The consolidation
was invalid. Undo what was the done by the defendant title should be given back to the
plaintiff.Injunction is issued it does not need a writ of execution as it is in effective upon order
to the party otherwise that would be a contemptible act. Held the defendant in contempt.

Summary Judgement- Final

Injunction was ordered after the foreclosure proceeding as their was nothing to be restrained
there was still something to restrain as the name of the title was not yet transferred to the
buyer.Consolidation was done in violation of the injunction. Defendant was in contempt in
court for the violation .

Restraining order cannot be extended. Another restraining order should be ordered on a

different Ground. Amend application to find another reason .

Third party claim.

Sheriff is only limited to attaching properties belonging to the defendant under rules of court

Get injunction from co-equal court to prohibit sheriff from attaching property