3. Dissolution of Attachment

Nature, Purpose, and Jurisdiction

DISCHARGE OF ATTACHMENT AND THE COUNTER-BOND

Grounds to Discharge Preliminary Attachment

Preliminary attachment shall be discharged when it is established that any of the following grounds exist:

• The debtor has posted a counterbond or has made the requisite cash deposit (Sec. 12, Rule 57)
• The attachment was improperly or irregularly issued as where there is no ground for attachment under Section 1 of this Rule (Sec. 13, Rule 57);
• The bond filed is defective or insufficient (Sec. 13, Rule 57);
• The attachment is excessive, but the discharge shall be limited to the excess (Sec. 13, Rule 57);
• The property attached is exempt from execution, hence exempt from preliminary attachment (Secs. 2 & 5, Rule 57); or
• The judgment is rendered against the attaching creditor. (Sec. 19, Rule 57)

Note: Attachment is IRREGULAR when any of the six (6) grounds for attachment are present but attachment was not made according to the rules.

When the preliminary attachment is issued upon a ground which is at the same time the central issue of applicant's cause of action, the defendant is not allowed to file a motion to dissolve the attachment under Section 13 of Rule 57 by offering to show the falsity of the factual averments in the plaintiffs application and affidavits on which the writ was based - and consequently that the writ based thereon had been improperly or irregularly issued - the reason being that the hearing on such a motion for dissolution of the writ would be tantamount to a trial of the merits of the action. (Watercraft Venture v. Wolfe, G.R. No. 181721, 2015)

Filing of a Counterbond Not a Waiver to Claim Damages Under the Attachment Bond

The filing of a counter-bond does not relieve applicant’s attachment bond’s liability for damages. Liability attaches if the plaintiff is not entitled to the attachment because the requirements entitling him to the writ are wanting, or if the plaintiff has no right to the attachment because the facts stated in his affidavit, or some of them are untrue. (Calderon v IAC, G.R. No. 74696, 1987)

The attachment debtor cannot be deemed to have waived any defect in the issuance of the attachment writ by simply availing himself of one way of discharging the attachment writ, instead of the other. (Id.).

Discharge of An Attachment Improperly or Irregularly Issued or Enforced or Attachment Bond is Insufficient

How to obtain discharge: Motion and hearing is necessary (Secs. 12 & 13, Rule 57)

When filed: before or after levy or after release of attached property. (Sec.13, Rule 57)

Burden of proof: the attaching creditor must show that the writ was properly issued. (Filinvest Credit Corp. v. Relova, G.R. No. L-50378, 1982)

When Discharge Due to Improper Issuance is Not Available

When the ground for the issuance of the writ forms the core of the complaint, the writ cannot be discharged until after trial on the merits. This is because the court cannot allow the litigation of the main issue of the case prior to trial. (Liberty Insurance Corp. v CA, G.R. No. 104405, 1993)

Once the writ of attachment is lifted due to the posting of a counterbond, the adverse party may no longer file a motion to lift the attachment on the ground that it was improperly or irregularly issued, since there is no longer anything to lift. (Mindanao Savings & Loan Association v. Mercado, G.R. No. 84481, 1989)

HOWEVER, this does not mean that the adverse party has waived all irregularity or impropriety in the issuance of the writ FOR PURPOSES OF CLAIMING DAMAGES. (Calderon v IAC, G.R. No. 74696, 1987).