This case has been cited 2 times or more.
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2008-02-13 |
NACHURA, J. |
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| The affidavit, being the foundation of the writ,[35] must contain such particulars as to how the fraud imputed to respondent was committed for the court to decide whether or not to issue the writ.[36] Absent any statement of other factual circumstances to show that respondent, at the time of contracting the obligation, had a preconceived plan or intention not to pay, or without any showing of how respondent committed the alleged fraud, the general averment in the affidavit that respondent is an officer and director of Wincorp who allegedly connived with the other defendants to commit a fraud, is insufficient to support the issuance of a writ of preliminary attachment.[37] In the application for the writ under the said ground, compelling is the need to give a hint about what constituted the fraud and how it was perpetrated[38] because established is the rule that fraud is never presumed.[39] Verily, the mere fact that respondent is an officer and director of the company does not necessarily give rise to the inference that he committed a fraud or that he connived with the other defendants to commit a fraud. While under certain circumstances, courts may treat a corporation as a mere aggroupment of persons, to whom liability will directly attach, this is only done when the wrongdoing has been clearly and convincingly established.[40] | |||||
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2007-09-21 |
YNARES-SANTIAGO, J. |
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| In the instant case, it must be stressed that the writ was issued by the trial court mainly on the representation of petitioner that respondent is not a resident of the Philippines.[34] Obviously, the trial court's issuance of the writ was for the sole purpose of acquiring jurisdiction to hear and decide the case. Had the allegations in the complaint disclosed that respondent has a residence in Quezon City and an office in Makati City, the trial court, if only for the purpose of acquiring jurisdiction, could have served summons by substituted service on the said addresses, instead of attaching the property of the defendant. The rules on the application of a writ of attachment must be strictly construed in favor of the defendant. For attachment is harsh, extraordinary, and summary in nature; it is a rigorous remedy which exposes the debtor to humiliation and annoyance.[35] It should be resorted to only when necessary and as a last remedy. | |||||