CUARTERO v CA

PRELIMINARY ATTACHMENT | G.R. No. 102448 | Gutierrez, J.

DOCTRINE: Under Rule 57.3, the only requisites for the issuance of a WPA are: (1) the affidavit and (2) bond of the
applicant. No notice or hearing is required, and a WPA may issue even before summons is served upon the
defendant. However, the WPA cannot bind and affect the defendant until jurisdiction over his person is eventually
obtained. Therefore, it is required that when the proper officer commences implementation of the writ of attachment,
service of summons should be simultaneously made.

FACTS OF THE CASE:

Nature Petition for Review under R45

Parties Ricardo Cuartero, petitioners

Court of Appeals, Roberto Evangelista, and Felicia Evangelista., respondents

RTC  Aug. 20, 1990: Ricardo Cuartero filed a complaint against Sps Evangelista for a sum of money plus
QC damages with a prayer for the issuance of a Writ of Preliminary Attachment (WPA)
 Aug. 24, 1990: RTC issued an order granting ex-parte Cuartero’s prayer for the issuance of a WPA
 Sept. 19, 1990: The WPA was issued pursuant to the Aug. 24 RTC Order
 Sept. 20, 1990: A copy of the WPA, the Aug. 24 RTC Order, the summons and the complaint were all
simultaneously served upon the Sps Evangelista at their residence
 Immediately thereafter, Deputy Sheriff Sula levied, attached, and pulled out the properties in
compliance with the court’s directive to attach all the properties of Sps Evangelista not exempt from
exempt from execution, or so much thereof as may be sufficient to satisfy Cuartero’s claim in the
amount of P2.1M
 Sps Evangelista filed a Motion to Set Aside the Aug. 24 RTC Order and Discharge the WPA
 The WPA was improperly and irregularly issued
 Oct. 4, 1990: RTC denied the Motion to Set Aside for lack of merit

CA  Sps Evangelista filed a petition for certiorari with the CA

 Questioned the Aug. 24 and Oct. 4 RTC Orders
 Prayed for a restraining order or Writ of Preliminary Injunction (WPI) to enjoin the RTC judge from
taking further proceedings below
 Oct. 4, 1990: CA resolved not to grant the prayer for restraining order or WPI
 No clear showing that the Sps were entitled thereto
 June 27, 1991: CA granted the petition for certiorari, grounding its decision on its finding that the RTC did
not acquire jurisdiction over the person of Sps Evangelista
 Nullified the assailed RTC Orders
 Cancelled the WPA issued by the RTC
 Relied on Siervert v CA: "Valid service of summons and a copy of the complaint vest jurisdiction in the
court over the defendant both for the purpose of the main case and for purposes of the ancillary
remedy of attachment and a court which has not acquired jurisdiction over the person of defendant,
cannot bind the defendant whether in the main case or in any ancillary proceeding such as attachment
proceedings”
 Oct. 22, 1991: CA denied Cuartero’s MR

SC  Cuartero filed a petition for review on certiorari with the SC

 Sps Evangelista’s Comment:
 Aside from the want of jurisdiction, no proper ground also existed for the issuance of the writ of
preliminary attachment
 Stressed that the fraud in contracting the debt or incurring the obligation upon which the action is
brought which comprises a ground for attachment must have already been intended at the inception of
the contract.
o According to them, there was no intent to defraud the petitioner when the postdated checks were
issued inasmuch as the latter was s aware that the same were not yet funded and that they were
issued only for purposes of creating an evidence to prove a pre-existing obligation

ISSUES with HOLDING:

1) W/N the CA was correct in cancelling the WPA issued by the RTC on the ground that the RTC did not
acquire jurisdiction over the person of the defendant spouses – NO
 A writ of preliminary attachment is defined as a provisional remedy issued upon order of the court where an action
is pending to be levied upon the property or properties of the defendant therein
  The levy is to be held thereafter by the sheriff as security for the satisfaction of whatever judgment might be
secured in said action by the attaching creditor against the defendant
 GENERAL RULE (on issuing WPA): Under Rule 57.3, the only requisites for the issuance of a WPA are: (1) the
affidavit and (2) bond of the applicant. No notice or hearing is required, and a WPA may issue even before
summons is served upon the defendant.
 BF Homes Inc. v CA: No notice to the adverse party or hearing of the application is required since the time
that the hearing would take up could be enough to enable the defendant to abscond or dispose of his property
before a Writ of Attachment is issued
 A hearing would render nugatory the purpose of the WPA as a provisional remedy
 The WPA can be applied for and granted at the commencement of the action or at any time thereafter
(R57.1).
 Davao Light and Power Co. v CA: The phrase "at the commencement of the action" is
interpreted as referring to the date of the filing of the complaint, which is a time before summons
is served on the defendant or even before summons issues
 After an action is properly commenced — by filing of the complaint and the payment of all
requisite docket and other fees — the plaintiff may apply and obtain a writ of preliminary
attachment upon the fulfillment of the pertinent requisites laid down by law
o The plaintiff may do so at any time, either before or after service of summons on the
defendant.
o The plaintiff or other proper party may incorporate the application for attachment in the
complaint or other appropriate pleading (counter-claim, crossclaim, third-party-claim)
and for the Trial Court to issue the writ ex-parte at the commencement of the action if it
finds the application otherwise sufficient in form and substance." (Davao Light v CA)
 It is wrong to assume that the validity of acts done during the period should be dependent on, to
held in suspension until, the actual obtention of jurisdiction over the defendant's person.
o The obtention by the court of jurisdiction over the person of the defendant is one thing;
quite another is the acquisition of jurisdiction over the person of the plaintiff or over the
subject matter or nature of the action, or the res or object thereof.
 APPLICATION: There is no merit in the private respondents' claim of violation of their constitutionally guaranteed
right to due process even if the WPA was issued before they were served summons and notice
 GENERAL RULE (on WPA implementation): While a WPA may issue before summons is served upon the
defendant, the WPA cannot bind and affect the defendant until jurisdiction over his person is eventually obtained.
Therefore, it is required that when the proper officer commences implementation of the writ of attachment,
service of summons should be simultaneously made.
 It must be emphasized that the grant of the provisional remedy of attachment practically involves three stages:
 first, the court issues the order granting the application;
 second, the writ of attachment issues pursuant to the order granting the writ; and
 third, the writ is implemented.
 For the initial two stages, it is not necessary that jurisdiction over the person of the defendant should first be
obtained.
o However, once the implementation commences, it is required that the court must have acquired
jurisdiction over the defendant
o Without such jurisdiction, the court has no power and authority to act in any manner against the
defendant. Any order issuing from the Court will not bind the defendant.
 APPLICATION: When the writ of attachment was served on the spouses Evangelista, the summons and copy of
the complaint were also simultaneously served. Thus the Sievert ruling is inapplicable, and it cannot be held that
the implementation of the WPA was improper
 In Sievert v. Court of Appeals, cited by the CA in its questioned decision, the writ of attachment issued ex-
parte was struck down because when the writ of attachment was being implemented, no jurisdiction over the
person of the defendant had as yet been obtained as the court had failed to serve the summons to the
defendant.
 The circumstances in Sievert are different from those in the case at bar. When the writ of attachment was
served on the spouses Evangelista, the summons and copy of the complaint were also simultaneously
served.
 Writs of attachment may properly issue ex-parte provided that the Court is satisfied that the
relevant requisites therefore have been fulfilled by the applicant
 Although it may, in its discretion, require prior hearing on the application with notice to the
defendant, but that levy on property pursuant to the writ thus issued may not be validly effected
unless preceded, or contemporaneously accompanied by service on the defendant of:
o summons,
o a copy of the complaint (and of the appointment of guardian ad litem, if any),
o the application for attachment (if not incorporated in but submitted separately from the
complaint),
o the order of attachment, and
o the plaintiff's attachment bond
2) W/N a proper ground existed for the issuance of the WPA – This is a question of fact, the determination of
which can only be had in appropriate proceedings conducted for the purpose
 The SC notes that the spouses Evangelista's motion to discharge s the writ of preliminary attachment was denied
by the lower court for lack of merit
 There is no showing that there was an abuse of discretion on the part of the lower court in denying the motion.
 Solidbank v CA: An attachment may not be dissolved by a showing of its irregular or improper issuance if it is
upon a ground which is at the same time the applicant's cause of action in the main case since an anomalous
situation would result if the issues of the main case would be ventilated and resolved in a mere hearing of a
motion
 In the present case, one of the allegations in petitioner's complaint below is that the defendant spouses induced
the plaintiff to grant the loan by issuing postdated checks to cover the installment payments and a separate set of
postdated checks for payment of the stipulated interest
 The issue of fraud, then , is clearly within the competence of the lower court in the main action.

DISPOSITIVE PORTION
WHEREFORE, premises considered, the Court hereby GRANTS the petition. The challenged decision of the Court of
Appeals is REVERSED, and the order and writ of attachment issued by Hon. Cesar C. Peralejo, Presiding Judge of
Branch 98, Regional Trial Court of Quezon City against spouses Evangelista are hereby REINSTATED. No
pronouncement as to costs.