SC upholds CA's denial of petition to void levy on debtor's properties

The Supreme Court Third Division upheld a Court of Appeals decision denying a petitioner's motion to annul a levy on attachment earlier granted to Shemberg Marketing Corporation over the properties of the firm's debtor.

The SC Third Division, which handled the case, said the CA was right in ruling that petitioner Bernardito Florido has "no personality to challenge the attachment writ and bond" issued by a trial court earlier.

The properties in question were five marine vessels owned by Solomon Nacua, who had debts to both Shemberg and Bernardito Florido.

On November 12, 1998, Shemberg filed at the trial court a complaint for collection of money with a plea for a writ of preliminary attachment of Nacua's properties, as guarantee of payments of debts.

On December 17 that year, the court granted Shemberg's plea thus, on January 7, 1999, the sheriff went to Nacua's house to serve the writ but he learned that Nacua was already out of the country.

Nacua appointed instead an attorney-in-fact, Mariano Florido Jr., a brother of Bernardito. So the sheriff went to Mariano and served the summons, in the presence of Bernardito. The sheriff also levied on and took possession of Nacua's four vessels that were unmanned and moored at the Cabahug Wharf in Looc, Mandaue City.

The following day, however, Bernardito filed in court a third-party claim arguing that Nacua also owed him P7 million, and that the latter executed, through Mariano, a contract of pledge over the five vessels to secure payment.

Bernardito also asked the court to declare null and void the levy of attachment earlier issued to Shemberg, contending that he was not served with summons before the sheriff seized the vessels. He further asked the court to cancel the attachment bond because the clerk of court has no copy of a certificate of authority to favor the bonding company.

Shemberg opposed the petitions arguing that Bernardito has no right to assail the levy and that there was a valid service of summons and complaint against Nacua.

On December 1, 1999, the trial court denied Bernardito's motions, ruling that only Nacua has the personality to challenge the bond. This prompted Bernardito to file two third-party claims, both of which are still pending to date.

On April 13, 2000, Bernardito raised the case to the CA for certiorari insisting that the levy on attachment granted to Shemberg should be voided and that the bond should be cancelled.

But on July 26 that year, the CA denied Bernardito's motions and, on November 14, denied his pleas for reconsideration.

Bernardito later went to the SC claiming errors in the CA decisions to deny his motion to annul the levy and cancel the bond.

However, the SC, in a ruling penned by Associate Justice Renato Corona, upheld the CA decisions, saying that the gist of the matter was whether or not Bernardito had the personality to challenge the writ and bond.

The SC said Bernardito should have instead pressed his title or right to the vessels and not assail the issuance of the writ and bond to Shemberg, for which he was deemed "a stranger to an action" or not a part of it.

As a third party, he should have filed an independent civil action to establish his right over the vessels or to contest the debtor's ownership of the properties.

"Nacua's ownership of the vessels attached was never disputed," said the SC, adding that Bernardito should have followed the rules of court of "vindicating his claim on the vessels" and not what he erroneously did.