No. L-50378. September 30, 1982.
Filinvest Credit Corporation (FILINVEST) filed a complaint against Rallye Motor Co. (RALLYE) for the collection of a sum of money with damages and preliminary writ of attachment. Judge Coquia granted the prayer for a writ of attachment on the ground that defendants have committed fraud in securing the obligation and are now avoiding payment of the same. Salazar, one of the defendants, filed Urgent Motion that the writ of preliminary attachment issued ex parte and implemented solely against his property be recalled and/or quashed since he did not committed fraud when he contracted the obligation. Justice Relova ordered the dissolution and setting aside of the writ of preliminary attachment issued and the return to Salazar of all his properties attached by the Sheriff by virtue of the said writ. FILINVEST filed a Motion for Reconsideration to be allowed to adduce evidence to prove that Salazar committed fraud but the respondent Judge denied the Motion.
Whether or not notice and hearing indispensable and mandatory requisites for the issuance of a writ of attachment.
No, a writ of attachment may be issued ex parte. Sections 3 and 4, Rule 57, merely require that an applicant for an order of attachment file an affidavit and a bond: the affidavit to be executed by the applicant himself or some other person who personally knows the facts and to show that (1) there is a sufficient cause of action, (2) the case is one of those mentioned in Section 1 of Rule 57, (3) there is no other sufficient security for the claim sought to be enforced, and (4) the amount claimed in the action is as much as the sum for which the order is granted above all legal counterclaims; and the bond to be “executed to the adverse party in an amount fixed by the judge, not exceeding the applicant’s claim, conditioned that the latter will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto.
The writ of attachment may be issued ex parte.