Rule 57. Adlawan V Torres

ELEAZAR V. ADLAWAN and ELENA S. ADLAWAN vs. adHon. Judge RAMON AM.
TORRES
G.R. Nos. 65957-58 July 5, 1994
Ponente: Quiason, J.
Doctrine/s:
To justify a preliminary attachment, the removal or disposal must have been made with
intent to defraud defendant’s creditors.
Proof of fraud is mandated by paragraphs (d) and (e) of Section 1, Rule 57 on the
grounds upon which attachment may issue. Thus, the factual basis on defendant’s intent to
defraud must be clearly alleged in the affidavit in support of the prayer for the writ of
attachment if not so specifically alleged in the verified complaint.
Facts:
Respondent Aboitiz and Company sought to collect from petitioners a sum of money for
unpaid loan amortizations, technical and managerial services rendered and unpaid installments
of the equipment provided by Aboitiz. Acting on an ex parte application for attachment, the
Executive Judge issued an order directing the issuance of the writ of preliminary attachment
against the property of petitioners upon the filing by respondent Aboitiz of an attachment bond.
Petitioners, however, moved for a bill of particulars and to set aside the ex parte writ of
attachment. Finding merit on the motion, the court ordered the lifting of the writ and
consequently the discharge of the levied property.
Respondent Aboitiz filed a notice of dismissal of its complaint, which was confirmed by
the court, emphasizing that all orders of the court issued prior to the filing of the notice of
dismissal had been rendered functus oficio and all pending incidents moot and academic.
Adlawan filed a motion for implementation and enforcement of the order. However, this
was denied by the court on account of the filing by respondent Aboitiz before another court of
an action for delivery of personal property (replevin) and the filing by Adlawan before the same
court of an action for damages in connection with the seizure of his property under the writ of
attachment.
In the replevin suit, the court ordered the seizure and delivery of the property. Alleging
that while his office was in Cebu City, Adlawan was a resident of Minglanilla and hence, Lapu
Lapu City court should not entertain the action for replevin for lack of jurisdiction. Adlawan filed
an omnibus motion praying for reconsideration and dissolution of the writ of seizure, the
retrieval of his seized property and dismissal of the complaint—DENIED. MR also denied.
The 3rd Division of the SC ruled that since the attachment is an ancillary remedy, the
withdrawal of the complaint left it with no leg to stand on. Respondent Aboitiz filed MR—denied
with finality. Second MR—SC ruled that the properties to be returned are only those held by
Aboitiz by virtue of writ of attachment that has been declared non ‐existent.
Again, Aboitiz filed against petitioners Two (2) complaints for collection of sum of
money with prayers for the issuance of writs of attachment due to money and equipment
loaned by Aboitiz to petitioners. Complaint 1: Judge Torres ordered the issuance of a writ of
attachment upon filing of P5M bond. Complaint 2: Judge Jacinto ordered issuance of writ of
attachmet upon filing of P2.5M bond.
A writ was issued by sheriff for complaint 1, but not for complaint 2.
Issue:
Whether or not the writ of preliminary attachment was properly issued.
The Court’s Ruling:
The Supreme Court ruled in the negative.
The affidavit submitted by Aboitiz in support of its prayer for the writ of attachment
does NOT meet the requirements of Rule 57 of the Rules of Court regarding allegations on
impending fraudulent removal, concealment and disposition of defendant’s property. To justify
a preliminary attachment, the removal or disposal must have been made with intent to defraud
defendant’s creditors.
The factual basis must be alleged in the affidavit in support of the prayer for the writ of
attachment if not so specifically alleged in the verified complaint. The Supreme Court have
found that there is no factual allegation which may constitute as a valid basis for the contention
that the mortgage was in fraud of Aboitiz.
The affidavit is the foundation of the writ and if none be filed or one be filed which
wholly fails to set out some facts required by law to be stated therein, there is no jurisdiction
and the proceedings are null and void. Bare allegation that an encumbrance of a property is in
fraud of the creditor does NOT suffice. Factual bases for such conclusion must be clearly
averred.
By mortgaging a piece of property, a debtor merely subjects it to a lien but ownership

thereof is not parted with. The inability to pay one’s creditors is no necessarily synonymous with
fraudulent intent not to honor an obligation. When petitioners filed for reconsideration of the
order directing the issuance of the writ, the respondent Judge Torres should have conducted a
hearing or required a submission of counter-affidavit from the petitioners, if only to gather the
facts in support of the alleged fraud.

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ELEAZAR V. ADLAWAN and ELENA S. ADLAWAN vs. adHon. Judge RAMON AM.

Whether or not the writ of preliminary attachment was properly issued.

The Court’s Ruling:

The Supreme Court ruled in the negative.

By mortgaging a piece of property, a debtor merely subjects it to a lien but ownership

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