Essay question no. 8(a) of the 2012 Remedial Law Bar Examination reads as follows:
“A sues B for collection of a sum of money. Alleging fraud in the contracting of the loan, A applies for preliminary attachment with the court. The court issues the preliminary attachment after A files a bond. While summons on B was yet unserved, the sheriff attached B’s properties. Afterwards, summons was duly served on B. B moves to lift the attachment. Rule on this.”
One suggested answer runs as follows:
“I will grant the motion since no levy on attachment pursuant to the writ shall be enforced unless it is preceded or contemporaneously accompanied by service of summons. There must be prior or contemporaneous service of summons with the writ of attachment (Rule 57, Sec. 5, Rules of Court).”1
This answer cites the applicable main rule. Section 5, Rule 57 of the Rules of Court provides that the enforcement of the attachment should be preceded or simultaneously accompanied by service of summons and the required papers mentioned therein. Otherwise, the attachment would be irregular and may be discharged upon motion pursuant to Section 13 of Rule 57.
An examinee, however, would garner valuable additional points if he or she tackles a hidden or embedded issue posed in the question. Note that the question states that summons was duly served on B after the attachment of his properties. This part of the question is significant because it poses a hidden issue: would the subsequent service of summons upon the adverse party cure the irregularity of the attachment?2
The suggested answer below tackles the hidden issue.
“I would grant the motion to lift the attachment.
“Under the Rules of Civil Procedure, no levy on attachment shall be enforced unless it is preceded or simultaneously accompanied by service of summons and other required papers.
“Here, the summons was not yet served at the time of the attachment. The attachment was thus irregular and may be discharged or lifted upon motion. The subsequent service of summons did not cure the irregularity that attended the enforcement of the writ because the rule requires that the service of summons must precede or be simultaneous with the enforcement of the attachment.3
“Hence, the attachment should be lifted or discharged.”
Spotting and tackling hidden issues is an important bar exam tactic which an examinee would do well to cultivate. In this regard, mock bar exams and feedback thereon under the guidance of a certified bar exam coach will help an examinee gain vital points which could spell the difference between the thrill of victory and the agony of defeat.
-oOo-
- U.P. LAW CENTER, SUGGESTED ANSWERS TO BAR EXAMINATION QUESTIONS IN REMEDIAL LAW (1997-2018), p. 312-313. ↩︎
- This was the issue posed at the outset of Oñate v. Abrogar, 241 SCRA 659 (1995). ↩︎
- Oñate at 664-667. Oñate explicitly rejected the argument that the subsequent service of summons after the attachment cured its irregularity. ↩︎
