Atty. Julius Gregory Delgado
DUMARAN VS. LLAMEDO, ET AL., G.R. NO. 217583 (04 AUGUST 2021):
NON-PAYMENT OF OBLIGATION DOES NOT AMOUNT TO FRAUD IN THE PERFORMANCE OF OBLIGATION AS WOULD JUSTIFY ISSUANCE OF A WRIT OF PRELIMINARY ATTACHMENT
Second of a Two-Part Series
In the first part of this series, regarding the Decision dated 04 August 2021 of the Supreme Court in G.R. No. 217583 entitled “Ignacio Dumaran vs. Teresa Llamedo, Sharon Magallanes and Ginalyn Cubeta”, it was held that non-payment of obligation does not automatically equate to a fraudulent act as would justify the issuance of a Writ of Preliminary Attachment. In the said case, petitioner Dumaran, the creditor, failed to allege in his Complaint and supporting Affidavit of Merit that he was defrauded by respondents Llamedo, et al., the debtors, into agreeing and entering into the subject transaction. The Court also held that petitioner Dumaran failed to prove his assertions that respondents Llamedo, et al. were already disposing their properties.
The next and final issue resolved by the Supreme Court in the said case is whether a counter-bond is not necessary for the discharge of a Writ of Preliminary Attachment. Citing Section 13, Rule 57 of the Rules of Court and FCY Construction vs. Court of Appeals, G.R. No. 123358 (01 February 2000), petitioner Dumaran said that the Writ of Preliminary Attachment should not have discharged without the counter-bond required under Section 12, Rule 57 of the Rules of Court as the hearing on the motion to discharge would be tantamount to hearing on the merits. Petitioner Dumaran insisted that the only way to discharge the bond would be for respondents Llamedo, et al. to post a counter-bond. On the other hand, respondents Llamedo, et al. argued that they were no longer required to post a counter-bond since, in the first place, the petitioner failed to prove existed of fraud, hence, the Writ of Preliminary Attachment should not have been issued in the first place.
The Supreme Court upheld the contention of respondents Llamedo, et al. and held that there are two (2) ways to cancel or cause the lifting of the Writ of Preliminary Attachment under Rule 57 of the Rules of Court, to wit:
- Under Section 12, make a cash deposit equal to the claim or give a counter-bond which will take the place of the attached property; or
- Under Section 13, file a motion to discharge the attachment on the following grounds:
- That it was improperly laid or irregularly issued; or
- That it was improperly or irregularly enforced; or
- That the bond of the plaintiff is insufficient.
In ruling that there is no need for posting a counter-bond to cancel or cause the lifting of the Writ of Preliminary Attachment, the Supreme Court held:
“For the second remedy to apply, a writ of attachment may be discharged without filing a cash bond or counter-bond only if the writ of preliminary attachment itself has already been proven to be improperly or irregularly issued or enforced, or the bond is insufficient. The limitation enunciated in FCY Construction will not apply when a regular trial on the merits of the main action, not only of the motion to discharge the writ, was conducted.
Here, the CA found that, after reading and hearing the allegations of both parties, Dumaran’s allegations did not meet the requirements of the law regarding fraud. The CA found that the writ of preliminary attachment had been irregularly issued, thus, a motion to discharge the writ under Rule 57, Section 13 was the proper remedy. A counter-bond under Section 12 is not necessary.”
From the foregoing, for a litigant whose property was improvidently and erroneously attached, to post a counter-bond should not be the first option to cause the cancellation or lifting of the Writ of Preliminary Attachment. The litigant may resort to Section 13, Rule 57 of the Rules of Court. This is now possible since the 2019 Amendments to the Rules of Court already mandates parties to lay down their cases by already attaching documentary evidence and testimonies of witnesses by way of Judicial Affidavits. The trial court can now very well assess if the Writ of Preliminary Attachment was improperly laid or irregularly issued.