legal forms compilation ceballos

Legal FormsAtty. Poncevic Ceballos

Submitted by:Atty. Nikki Magdalene Bellosillo

Atty. Michael CorrallesAtty. Peter dela Fuente

Atty. Victor PanlilioAtty. Idesa Roxas

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March 7, 2012

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Table of Contents

Pleading Page

I. PLEADINGS AND OTHER LEGAL DOCUMENTS IN CIVIL PROCEDUREA. Answer………………………………………………………………………………….. 3B. Pre- Trial

Brief…………………………………………………………………………..6

C. Motions1. Motion to

Dismiss……………………………………………………………………………...10

2. Motion for Extension of Time to File a Comment…………………………………………………………………………...

12

II. PLEADINGS AND OTHER LEGAL DOCUMENTS IN CRIMINAL PROCEDUREA. Complaint-Affidavit and Counter-Affidavit

1. Complaint-Affidavit…………………………………………………………………………….

15

2. Counter-Affidavit…………………………………………………………………………….

17

III. PLEADINGS AND OTHER LEGAL DOCUMENTS COMMON TO CIVIL AND CRIMINAL PROCEDUREA. Formal Offer of

Evidence………………………………………………………………………………...19

IV. DEEDS, CONTRACTS AND OTHER CORPORATE LEGAL DOCUMENTSA. Special Power of

Attorney………………………………………………………………21

B. General Power of Attorney……………………………………………………………...

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C. Donation Inter Vivos……………………………………………………………………

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D. Deed of Absolute Sale…………………………………………………………………...

25

E. Pledge of Shares………………………………………………………………………...

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V. NOTARIAL LAWA. Acknowledgement……………………………………………………………………

….30

B. Jurat……………………………………………………………………………………... 31

VI. SAMPLE TRIAL MEMORANDUM………………………………………………………..

32

VII.SAMPLE LEGAL OPINION…………………………………………………………. 34

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Republic of the PhilippinesNational Capital Judicial RegionMETROPOLITAN TRIAL COURT

Manila, Branch __

A,Plaintiff,

Civil Case No. ___- versus - For: Unlawful Detainer and

Damages

B,Defendant.

x ----------------------------------- x

ANSWER(with Negative, Special and Affirmative Defenses and Counter Claim)

Comes now defendant B, through counsel, unto this Honorable Court respectfully represents that:

ADMISSIONS

Defendant admits the allegations contained in the following paragraphs of the Complaint:

1. Paragraph 1, with respect to the personal circumstances of the parties.

2. Paragraph 2, only with respect to the allegation that the parties entered into a lease contract over the building located at 123 Sampaloc, Manila (the “Subject Property”), which expired on January 1, 2012.

3. Paragraph 3, only with respect to the allegation that Defendant was liable to pay rent at the rate of Ten Thousand Pesos (P10,000.00) under the lease contract which expired on January 1, 2012.

4. Paragraph 5, only with respect to the allegation that the lease contract already expired, and that Defendant received the demand letter dated January 10, 2012.

DENIALS AND DEFENSES

Defendant specifically denies the allegations contained in the following paragraphs of the Complaint:

1. Paragraph 2, particularly with respect to the allegations that Plaintiff is the owner and/or possessor of the Subject Property, that the Subject Property is currently the subject of a lease contract, that Defendant is the lessee of the Subject Property, and that Defendant is in possession of the Subject Property in his capacity as lessee thereof, the truth being that there is presently no valid and subsisting Contract of Lease since, as alleged by the Plaintiff, the contract of lease between the parties over the Subject Property expired on January 1, 2012. Meanwhile, on January 12, 2012, Defendant purchased the Subject Property from Plaintiff and is presently the absolute owner and lawful possessor thereof in the concept of an owner. A copy of the Receipt duly issued by Plaintiff evidencing his receipt of the entire purchase price in the amount of One Million Pesos (P1,000,000.00) on January 12, 2012 is attached as ANNEX A and made an integral part hereof.

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2. Paragraph 3, insofar as it is made to appear that Defendant continues to be obliged to pay rent to Plaintiff, the truth being that there is presently no valid and subsisting Contract of Lease since, as alleged by the Plaintiff, the contract of lease between the parties over the Subject Property expired on January 1, 2012.

3. Paragraph 4, with respect to the allegations that Defendant failed to pay rentals due to Plaintiff, that Defendant failed to pay rent corresponding to the period October 2010 up to March 2011, and that Defendant owes Plaintiff back rentals, and that such back rentals amount to Sixty Thousand Pesos (P60,000.00), the truth being that Defendant has fully paid all amounts due under the lease contract with Plaintiff, and that Defendant is no longer liable to pay rent to Plaintiff starting on January 1, 2012.

4. Paragraph 5, insofar as it is alleged or made to appear that Defendant is liable to Plaintiff for unpaid rent, that there is basis for the claim/demand of Plaintiff for Defendant to vacate the Subject Property, that Plaintiff is still the owner of the Subject Property, and that there is basis for the claim/demand for unpaid rent, the truth being that Defendant does not owe Plaintiff any amount, whether by way of unpaid rent or otherwise, and that Defendant served on Plaintiff a demand letter dated February 1, 2012 demanding Plaintiff to execute a Deed of Absolute Sale over the Subject Property on account of full payment of the purchase price on January 12, 2012 [see Receipt dated January 12, 2012 (Annex A hereof)]. A copy of the demand letter dated February 1, 2012 as personally received by Plaintiff on February 1, 2012 is attached as ANNEX B and made an integral part hereof.

5. Paragraph 6, insofar as it is alleged or made to appear that Defendant owes Plaintiff an amount of money, that Defendant owes Plaintiff unpaid rent, that there is basis for the claim/demand for Defendant to vacate and to pay back rentals, and that Defendant does not have legal justification to refuse the demand of Plaintiff, the truth being that Defendant has fully paid all amounts due under the lease contract with Plaintiff, that Defendant is no longer liable to pay rent to Plaintiff starting on January 1, 2012, that Plaintiff has no cause of action against Defendant, and that it is Defendant who has a cause of action against Plaintiff for the latter to execute the corresponding Deed of Absolute Sale over the Subject Property.

6. Paragraph 7, insofar as it is alleged that Defendant refused to appear before the Lupon Tagapamayapa for Barangay conciliation, the truth being that Defendant never received any notice therefor.

7. Paragraph 8, with respect to the allegations that Defendant is liable to pay Plaintiff, that Defendant is liable to pay Plaintiff the amount of Sixty Thousand Pesos (P60,000.00), that Defendant’s possession of the Subject Property is unlawful, that Plaintiff suffered damages by way of lost profits, the truth being that Defendant has fully paid all his obligations to pay rent under the lease contract, that Defendant’s possession of the Subject Property is valid, lawful, and in the concept of an owner, and that there is no basis for Plaintiff to earn income from the use of the Subject Property commencing January 12, 2012 by virtue of a prior sale thereof to Defendant.

8. Paragraph 8, with respect to the allegations covering arrangements for the payment of legal expenses, for lack of knowledge or information sufficient to form a belief as to the truth thereof.

COUNTERCLAIM

By way of counterclaims, Defendant seeks the following:

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1. Specific performance for Plaintiff to execute the corresponding Deed of Absolute Sale over the Subject Property, pursuant to the agreement of the Parties, as evidenced by the full payment of the purchase price on January 12, 2012 [see ANNEX A hereof].

2. Payment of attorney’s fees by virtue of this unwarranted and malicious act initiated by the plaintiff, which forced Defendant to engage the services of counsel for a fee in amount not less than Twenty Thousand pesos (P20,000.00).

PRAYER

WHEREFORE, it is respectfully prayed of this Honorable Court that the case be DISMISSED for being frivolous and unfounded, and that Plaintiff’s counterclaims be granted, directing Plaintiff to execute the corresponding Deed of Absolute Sale over the Subject Property, and for Plaintiff to pay Defendant the sum of Twenty Thousand Pesos (P20,000.00) as and by way of attorney’s fees.

Other relief and remedies just and equitable under the circumstances are likewise prayed for.

Makati City , Philippines, Feb 12 2012.

(Sgd.) ATTY. AAACounsel for Defendant

Address: Rockwell Drive, Makati City

Attorney’s Roll No. : 12345IBP No. : 876543 issued on

January 8, 2012 at Makati CityPTR No. 98653 issued on

January 8, 2012 at Makati CityMCLE Compliance Certificate

No. II-86484

VERIFICATION AND CERTIFICATION

I, B, of legal age, after having been duly sworn in accordance with law, hereby depose and state:

1. I am the defendant in the above-entitled case;

2. I caused the preparation and filing of the foregoing Answer, the contents/factual allegations of which are true and correct based on my own personal knowledge and authentic records; and

3. No other action or proceeding involving the same issues raised in the counterclaims above has been commenced and/or pending with the Supreme Court, Court of Appeals or any Division thereof, or any other tribunal or agency, and that to be best of my knowledge, no such action or proceeding is pending in the Supreme Court, Court of Appeals, different divisions thereof, or any other tribunal or agency. If I should learn that a similar action of proceeding has been filed or is pending in the Supreme Court, Court of Appeals, or different divisions thereof, or any other tribunal or agency, I shall notify or cause to notify this Honorable Court with five (5) days from such notice.

B

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SUBSCRIBED AND SWORN to before me this __ February 2012 in Makati City, Metro Manila, affiant exhibiting to me his/her Community Tax Certificate No. _________ issued on __________ at _________, and her competent evidence of his/her identity in the form of his/her _________________________________.

Doc. No. ____;Book No. ____;Page No. ____;Series of 2012.

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REPUBLIC OF THE PHILIPPINESREGIONAL TRIAL COURT

6th JUDICIAL REGION Branch 2

Kalibo, Aklan

HEIRS OF ROBERTO TIROL, JR.,CECILIA TIROL-JAVELOSA andCIRIACO TIROL, Plaintiffs,

CIVIL CASE NO: 7891FOR: Nullification of Deed of Donation, Reversion of Property to Estate, Recovery of Possession, Cancellation of Tax Declaration, Damages, etc.

-versus-

SPOUSES GREGORIO AND MARIALOURDES SANSON, SPOUSES FEDERICOAND RUTH-JARANTILLA,PEARL OF BORACAYLANDHOLDINGS INC., (OWNER/OPERATOR OF PEARL OF THE PACIFIC)GREGORIO ALFREDO SANSON, MA. RITA GLORIAT. SANSON, LEO MONTINOLA, THE PROVINCIAL ASSESOR OF KALIBO,AKLAN AND THE MUNICIPAL ASSESOROF MALAY, AKLAN,

Defendants.x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

PRE-TRIAL BRIEF FOR THE PLAINTIFF

Plaintiffs, by counsel to this Honorable Court respectfully submit this Pre Trial Brief stating the following:

I. WILLINGNESS TO ENTER INTO AN AMICABLE SETTLEMENT AND POSSIBLE TERMS OF ANY SUCH SETTLEMENT

A. Subject to a concrete proposal that is fair and reasonable and a reciprocal manifestation of openness from defendants, plaintiffs are open to the possibility of amicably settling this dispute.

B. Pursuant to Rule 18 of the 1997 Rules of Civil Procedure, plaintiffs respectfully submit that the desired terms of any amicable settlement would involve, first, a clarification of the actual extent of the obligation due and owing to plaintiffs and, second, a schedule of payments.

II. SUMMARY OF ADMITTED FACTS

The plaintiffs Cecilia and Ciriaco Tirol are the compulsory heirs of the late Roberto Tirol Sr,. Plaintiffs Martin Roberto, Ma. Zharina, Francis Antonio and Daniel Antonio are the direct descendants and compulsory heirs of the late Roberto Tirol Jr., the latter being a compulsory heir of Roberto Tirol Sr., although the former predeceased latter. Hence, the children of Roberto Jr. are suing herein as heirs of the latter, by way of right of representation in contemplation of our laws on succession.

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III. PROPOSED STIPULATION OF FACTS

Roberto Tirol Sr., during his lifetime, executed a Deed of Donation in favor of defendants Ruth Tirol-Jarantilla and Ma. Lourdes Sanson, which was accepted in writing by the latter. The said deed was confirmed by an affidavit executed by the donor.

On March 09, 1994, after the death of the donor, the applicable donor’s tax was purportedly paid.

IV. STATEMENT OF PLAINTIFFS’ CLAIMS

A. Deed of Donation Not a Public Instrument

After conducting due diligence to determine the existence of the said deed, the original or duplicate copies thereof are nowhere to be found. The National Archives of the Philippines certified that the said deed is not available in its files, thereby implying that the deed is not a public instrument.

Not being a public instrument, it cannot have legal efficacy and hence it could not have transferred any right, title or interest over the said parcel of land to the defendants.

B. Belated Payment of Taxes

Given the fact that said applicable tax was not yet paid at the time of the death of Roberto Sr., the donor, the said parcel of land therefore contemplated in the said deed of donation automatically formed part of the latter’s estate, in accordance with our tax laws.

The delayed payment of the tax, after the death of the donor, did not in anyway cure the fatal defect omission of its non-payment within the time prescribed by our tax laws, thereby automatically making the parcel of land part of his estate and theretofore subject of partition by the heirs of Roberto Tirol, Sr.

C. Breach of Deed of Donation

The afore-quoted deed of donation imposed upon the donees a perpetual prohibition on the commercialization of the said parcel of land and that the same shall be used exclusively as a memorial garden.

Notwithstanding, commercial establishments such as a health spa, resort clubhouses and swimming pools were caused or allowed by the donees to be built thereon.

V. APPLICABLE LAWS AND AUTHORITIES

Provisions of the Civil Code on Donations and jurisprudence on the matter.

VI. ISSUES TO BE TRIED

Plaintiffs submit the following issues to be tried:1. Whether the subject Deed of Donation, executed by Roberto Tirol Sr., during his

lifetime, in favor of Defendants, is without legal efficacy and null and void;2. Whether the Defendants breached the terms of the subject Deed of Donation;3. Whether the parcel of land, specifically lot 5350-P, reverts back or forms part of

the estate of Roberto Tirol, Sr., and should thus, be included in its inventory of assets in the on-going settlement of his estate;

4. Whether Defendants are liable for payment of rent for their use and possession of the subject property.

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VII. DOCUMENTS AND EXHIBITS

Plaintiffs intend to present the following documents:1. Special Power of Attorney executed by Ciriaco Tirol for Cynthia Tirol to be his

legal representative, labeled Annex “A” to “A-3”;2. Special Power of Attorney executed by Martin Roberto, Ma. Zharina, Francis

Antonio and Daniel Antonio, all surnamed “Tirol” for Martin Roberto Jr. and Maria Cecilia Carrascoso to represent them, labeled Annex “B to C-3”;

3. Deed of Donation executed by Roberto Tirol Sr., during his lifetime, in favor of Defendants Ruth Tirol-Jarantilla and Maria Lourdes Tirol-Sanson, labeled Annexes “D” to “D-4”;

4. Late Roberto Tirol, Sr.’s affidavit, confirming the said donation, labeled Annex “E”;

5. Authority to Accept Payment issued by Bureau of Internal Revenue dated March 9, 1994, as evidence of the payment of donor’s tax corresponding to the said deed, labeled Annex “F”;

6. Certification issued by Bureau of Internal Revenue dated March 9, 1994, as evidence of the payment of donor’s tax corresponding to the said deed, labeled Annex “G”;

7. Tax Declaration No. 3362 issued in the names of Defendants Ruth Jarantilla and Ma. Lourdes Tirol-Sanson, labeled Annex “H”;

8. Certification made by Estrella M. Domingo dated December 19, 2005, labeled Annex “I”;

9. Decision on Zoning issued by the Office of the Municipal Zoning Administrator dated May 5, 2004, labeled Annex “J”;

10.Letter of Endorsement of the Office of the Sangguniang Bayan Municipality of Malay dated April 6, 2004, labeled Annex “K”;

11.Application for Zoning Compliance issued by the Municipality of Malay dated February 6, 2004, labeled Annex “J”;

12.Re-survey of subject property conducted by Engr. Certeza, labeled Annex “M”;13.Permit for construction of swimming pool, cottages and a bar, labeled Annex

“N”;14.Plaintiffs reserves the right to present documentary and other exhibits to prove

their case in the course of the trial;

VIII. MODES OF DISCOVERY

Plaintiffs reserves the right to avail of the modes of discovery and the use of commissioners in the course of the trial should the need arise.

IX. WITNESSES

Plaintiffs intend to present at least 2 witnesses:a. Estrella M. Domingo who will testify that no notarial record exists on file of

Pablo Tolentino, a notary public for and within Iloilo City, and of the copy of the subject Deed of Donation executed before Tolentino;

b. Engr. Bernan Certeza, an engineer who will testify that commercial structures have been built on subject property, and on the portions of the lot that these structures were actually built on;

c. Petitioners reserve the right to present additional witnesses in the course of the trial.

X. TRIAL DATES

Plaintiff submits to the sound discretion of this Honorable Court as well as to its availability with respect to the setting of the trial dates.

WHEREFORE, premises considered, it is most respectfully prayed that this PRE TRIAL BRIEF be admitted as part of the records of the case.

Such other relief just and equitable is likewise prayed for.

Kalibo, Aklan, January 15, 2008

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FERRER KEH ROBLES TORRIJOS & TUASON

LAW FIRM

Counsel for the PlaintiffsUnit 3718, South Joyas

Bldg.,Rockwell Center, Makati

City

By: Jefferson FerrerATTY. JEFFERSON FERRERP.T.R. No. ******** 01/01/2012 Makati CityIBP O.R. No. ****** 01/01/2012 Makati CityMCLE No. III – ******* 11/18/2008Roll No. *****TIN – *** *** ***

Katherine KehATTY. KATHERINE KEHP.T.R. No. ******** 01/01/2012 Makati CityIBP O.R. No. ****** 01/01/2012 Makati CityMCLE No. III – ******* 11/18/2008Roll No. *****TIN – *** *** ***

Jannica RoblesATTY. JANNICA ROBLESP.T.R. No. ******** 01/01/2012 Makati CityIBP O.R. No. ****** 01/01/2012 Makati CityMCLE No. III – ******* 11/18/2008Roll No. *****TIN – *** *** ***

Corinna TorrijosATTY. CORINNA TORRIJOSP.T.R. No. ******** 01/01/2012 Makati CityIBP O.R. No. ****** 01/01/2012 Makati CityMCLE No. III – ******* 11/18/2008Roll No. *****TIN – *** *** ***

Juan Miguel TuasonATTY. JUAN MIGUEL TUASONP.T.R. No. ******** 01/01/2012 Makati CityIBP O.R. No. ****** 01/01/2012 Makati CityMCLE No. III – ******* 11/18/2008Roll No. *****TIN – *** *** ***

Copy furnished:

The Clerk of CourtRTC-Branch 2

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Kalibo, Aklan

Atty. Block BeeCounsel for DefendantUnit 311 Ateneo Law School Bldg.Rockwell Center, Makati City

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REPUBLIC OF THE PHILIPPINESREGIONAL TRIAL COURT

6th JUDICIAL REGION Branch 2

Kalibo, Aklan



-versus-


Defendants.x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

MOTION TO DISMISS

The defendants, through their respective counsels, respectfully moves to dismiss the Complaint on the ground that the venue is improperly laid, as shown by the following:

1. The Deed of Donation, executed by Roberto Tirol, Sr., during his lifetime, in favor of Defendants Ruth Tirol-Jarantilla and Maria Lourdes Tirol-Sanson, expressly provided for a procedure to follow in the event that legal matters should arise regarding the donation or the property situated in Kalibo, Aklan.

2. Clause 14 of the Deed of Donation clearly provides, “as for any legal matter which may arise involving the donation between the parties or the property subject thereof, the claim shall be instituted in the proper courts of either Makati City or Iloilo City.”

WHEREFORE, premises considered, it is respectfully prayed of the Honorable Court to order the dismissal of the above-captioned case.

Kalibo, Aklan, February 25, 2008 B E E

LAW FIRM

Counsel for the DefendantsUnit 311 Ateneo Law School

Bldg.Rockwell Center, Makati

City

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By:Block Bee

ATTY. BLOCK BEEP.T.R. No. ******** 01/01/2012 Makati CityIBP O.R. No. ****** 01/01/2012 Makati City

MCLE No. III – ******* 11/18/2008Roll No. *****

TIN – *** *** ***

REQUEST FOR & NOTICE OF HEARING

Atty. Jefferson FerrerAtty. Katherine KehAtty. Jannica RoblesAtty. Corinna TorrijosAtty. Juan Miguel TuasonCounsel for the PlaintiffsUnit 3718, South Joyas Bldg.,Rockwell Center, Makati City

Greetings!

Please take notice that the undersigned will submit the foregoing Motion to Dismiss for the consideration and approval of the Honorable Court immediately upon receipt hereof or as soon as the same may be heard upon prior notice, and kindly include the same in the court’s calendar for hearing on March 1, 2008 at 8:30 in the morning.

BLOCK BEE

Copy furnished through registered mail:

Atty. Jefferson FerrerAtty. Katherine KehAtty. Jannica RoblesAtty. Corinna TorrijosAtty. Juan Miguel TuasonCounsel for the PlaintiffsUnit 3718, South Joyas Bldg.,Rockwell Center, Makati City

EXPLANATION

The foregoing motion and its attachment were served on Attys. Jefferson Ferrer, Katherine Keh, Jannica Robles, Corinna Torrijos and Juan Miguel Tuason by registered mail instead of personal service as counsel for petitioner only has one messenger and personal service would have resulted in the motion not being filed on time.

BLOCK BEE

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REPUBLIC OF THE PHILIPPINESCOURT OF APPEALS

Kalibo, Aklan



-versus-


Defendants.x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

MOTION FOR EXTENSION OF TIMETO FILE A COMMENT

Respondents, through counsel, unto this Honorable Court, most respectfully states that:

1. On 08 August 2008, the undersigned counsel received the Order dated July 31, 2008 of the Second Division, Court of Appeals, directing the Respondents to file a comment within ten (10) days from receipt thereof;

2. Due to heavy work load consisting of pleading preparation, almost daily appearances in court and client conferences of respondent’s counsel, the comment thereon cannot be prepared and submitted on 18 August 2008;

3. In order to afford the Respondents the opportunity to comment petition filed by the Plaintiff, Respondents humbly need and pray for an additional period of twenty (20) days from August 18, 2008 or until September 7, 2008 to file the intended comment;

4. This motion is resorted not to delay, but to promote the ends of justice and due to the foregoing reasons.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this Honorable Court to grant herein Respondents an extension of twenty (20) days from August 18, 2008 or until September 7, 2008 within which to file their comment.

Such other relief and remedies deemed just and equitable under the premises are likewise prayed for.

Kalibo, Aklan, 15 August 2008

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FERRER KEH ROBLES TORRIJOS & TUASON

LAW FIRM

Counsel for the PlaintiffUnit 3718, South Joyas

Bldg.,Rockwell Center, Makati

City

By:

Jefferson FerrerATTY. JEFFERSON FERRERP.T.R. No. ******** 01/01/2012 Makati CityIBP O.R. No. ****** 01/01/2012 Makati CityMCLE No. III – ******* 11/18/2008Roll No. *****TIN – *** *** ***

Katherine KehATTY. KATHERINE KEHP.T.R. No. ******** 01/01/2012 Makati CityIBP O.R. No. ****** 01/01/2012 Makati CityMCLE No. III – ******* 11/18/2008Roll No. *****TIN – *** *** ***

Jannica RoblesATTY. JANNICA ROBLESP.T.R. No. ******** 01/01/2012 Makati CityIBP O.R. No. ****** 01/01/2012 Makati CityMCLE No. III – ******* 11/18/2008Roll No. *****TIN – *** *** ***

Corinna TorrijosATTY. CORINNA TORRIJOSP.T.R. No. ******** 01/01/2012 Makati CityIBP O.R. No. ****** 01/01/2012 Makati CityMCLE No. III – ******* 11/18/2008Roll No. *****TIN – *** *** ***

Juan Miguel TuasonATTY. JUAN MIGUEL TUASONP.T.R. No. ******** 01/01/2012 Makati CityIBP O.R. No. ****** 01/01/2012 Makati CityMCLE No. III – ******* 11/18/2008Roll No. *****TIN – *** *** ***

N O T I C E

Atty. Block BeeUnit 311 Ateneo Law School Bldg.Rockwell Center, Makati City

Greetings!

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Due to its nature and urgency, please submit the foregoing Motion for Extension of Time for the consideration and approval of the Honorable Court immediately upon receipt hereof.

JEFF FERRERKATHERINE KEHJANNA ROBLESCORINNA TORRIJOSJUAN MIGUEL TUASON

EXPLANATION

Due to the distance between the office of the undersigned counsels and the office of the Petitioner’s Counsel and the death of messenger, personal service of this Motion for Extension of Time is impracticable, hence, service is hereby made through registered mail.

JEFF FERRERKATHERINE KEHJANNA ROBLESCORINNA TORRIJOSJUAN MIGUEL TUASON

Copy furnished through registered mail:

Atty. Block BeeCounsel for DefendantUnit 311 Ateneo Law School Bldg.Rockwell Center, Makati City

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Republic of the Philippines)Mandaluyong City ) s.s.

COMPLAINT-AFFIDAVIT

I, Ben Janis Morales de Castro, Filipino citizen, married to Luisito de Castro and mother of two children with residence address of 5 Villarica Street, Mandaluyong City, after having been sworn to in accordance with law, do hereby depose and state that:

1. On September 9, 2004, at 12:30 in the evening, my housemaid and I, together with my youngest child were in the ground floor of the two-storey house I live in when Lito Legaspi y Mullera arrived.

2. The said Lito Legaspi y Mullera, also known as Moro, was outside the house and started shouting for him to be allowed inside the house. Upon hearing the commotion, the housemaid and I told him to go home, and we ourselves went up to the second floor for safety.

3. A moment passed without any shouting from the latter. But Moro once again shouted and it came from the roof top of the house. At this point, the older child was also awakened by the noise. I told Moro to calm down and talk.

4. Nonetheless, Moro continued shouting and even started to try to get into the house by destroying the wood that was covering a hole, which was originally a window. Moro succeeded in removing the wood covering and inserted his head inside. This scared the older child and she began to cry.

5. At this point, Moro threatened me to calm my child or else he will kill me. On that note, I told Moro to go down and I will talk to him.

6. The latter went down and met with me and my housemaid at the gate. He instructed that the gate be opened, and at that instance, he went inside. He once again pursued that we be left alone and grabbed my arm and threatened that if the maid did not leave, he will create trouble.

7. I instructed the maid to leave to avoid any more trouble. The moment the maid left, Moro picked something up and pointed it at my back. He then dragged me outside and started walking towards his house, still with my hands held and the object pointed at my back.

8. Moro dragged me into his house, which at the time was very dimly lit. Once there, he held me to the ground and kissed me. Thereafter he took off my shirt, pajamas, and underwear. After removing my clothing, he inserted his organ into mine, for approximately two (2) minutes, causing me much pain.

9. I was unable to repulse him despite vain efforts to resist. At the time I had been recently operated on due to the caesarian birth of my youngest child, and was also sick with “sore eyes”.

10.Moro only returned my clothing after thirty (30) minutes. When I tried to get up, he held my hands and also threatened to make it appear that I was dead. I told him that I would not tell anybody. He responded by telling me to wait until he would allow me to go home. Finally, he brought me home at about 1:30 in the morning.

11.Despite the incident, I did not approach the police because I was scared of his threats to harm me and my children. I only reported to the police on October 3, 2004, after Moro got drunk and threw something at our house. At this point, I became afraid that he would repeat his actions.

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12.In the light of the above-cited incident, it is evident that Lito Legaspi Y Mullera alias “Moro” committed the crime of Rape under Art. 266-A of the Revised Penal Code as provided in the Republic Act 8353.

13.Article 266-A of the Revised Penal Code states that : Rape is committed:

a. By a man who shall have carnal knowledge of a woman under any of the following circumstances:

i. Through force, threat, or intimidationii. When the offended party is deprived of reason or otherwise

unconscious;iii. By means of fraudulent machination or grave abuse of

authority; and iv. When the offended party is under twelve (12) years of age or is

demented, even though none of the circumstances mentioned above be present.

14.Lito Legaspi y Mullera, alias “Moro” committed all of the elements of the crime of rape under the first paragraph of Article 266-A, thus:

a. He had carnal knowledge of me

b. He employed force, by pinning me down and forcefully inserting his organ into mine.

15.In view of the foregoing, I am executing this affidavit in order to charge Lito Legaspi Y Mullera of the crime of Rape under Article 266-A of the Revised Penal Code as provided in Republic Act No. 8353. All the allegations in this affidavit are based on the personal knowledge and experience of the complainant.

CERTIFICATION

Subscribed and sworn to before me this 3rd day of October, 2004 in the City of Mandaluyong. This is to certify that the affiant personally appeared before me and verified that she executed this affidavit-complaint, has read the contents of the same and that the contents thereof are true and correct of her own knowledge and information based on the available records.

Flordeliza M. SilaoOffice of the City Prosecutor

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REPUBLIC OF THE PHILIPPINESOFFICE OF THE PROSECUTOR

MANDALUYONG CITY

BEN JANIS MORALES DE CASTRO,Complainant,

- versus – I.S. no. ______For: Rape

LITO LEGASPI Y MULLERA @ MORORespondent.x----------------------------------x

COUNTER-AFFIDAVIT

I, CARLITO LEGASPI Y MULLERA, 42 years old, Filipino, with home address at #1 Villarica Street, Barangay Mabini J. Rizal, Mandaluyong City, after being sworn to in accordance with law, hereby depose and state that

1. I know the complainant Ben Janis Morales de Castro because she sometimes calls me to do maintenance work on her house and that her husband is my childhood friend.

2. I have a wife and child who were in Sta. Rosa, Laguna at the time of the alleged rape.

3. I have been the caretaker of the house of Dra. De Leon and Architect Tony de Leon, which is located at the corner of Villarica Street for about five years already.

4. I learned of the charge against me only upon my arrest on October 3, 2004 and that on the date of the alleged rape, I was at my house with my mother, brother, nephews and nieces and that I was sleeping inside my room as I have to work the next day.

5. On the day of my arrest, I was engaged in a fight with a certain Jun, who is a gay friend of the complainant residing in the same house.

6. Upon punching Jun, he ran towards the house of the complainant. I then hurled stones to the house of the complainant who called the Barangay Tanod.

7. Upon arrival of the Barangay Tanod, they invited me to go to Barangay Mabini J. Rizal. I waited in the kitchen for a long time until the mobile car arrived that brought me to the CID then to the medical hospital afterwards.

8. The charge is based on the allegation that I raped BEN JANIS MORALES DE CASTRO on September 9, 2004.

9. To rebut the allegations of BEN JANIS MORALES DE CASTRO, I am presenting the medico- legal report of the complainant. This will show that it may be anyone who could have any sexual encounter with the complainant.

10.Also to be presented will be the affidavits of my brother and sister- in- law. These affidavits will show that the date of the alleged rape, I was sleeping in my room and could not have committed the crime charged against me

11.I am also presenting the land title of the complainant’s house to rebut the allegations against me. This land title will prove that the complainant’s father-in-law, Mang Vener, and that he entrusted the house to me in case there will be persons interested in buying the house, I can just show the title to them.

12.Considering the foregoing, I respectfully pray that I be acquitted of the crime of RAPE wrongfully imputed upon me by BEN JANIS MORALES DE CASTRO.

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TO THE TRUTH OF THE FOREGOING, I have signed this Counter Affidavit on the 3rd day of October 2004.

(sgd.) Carlito Legaspi y MulleraAffiant

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Subscribed and sworn to before me, this 3rd day of October 2004 at Mandaluyong City.

Flordeliza M. SilaoCity Prosecutor

CERTIFICATION

I hereby certify that I have personally examined the Affiant and that I am satisfied that he voluntarily executed and understood his Affidavit.

Flordeliza M. SilaoCity Prosecutor

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Republic of the PhilippinesRegional Trial Court 6th Judicial Region

Branch 2 Kalibo, Aklan

HEIRS OF ROBERT TIROL JR.,CECILIA-TIROL-JAVELOSA andCIRIACO TIROL

Plaintiffs,

-versus CIVIL CASE NO. 7891For: Nullification of Deed of Donation, Reversion of Property To Estate, Recovery of Possession,Cancellation of Tax Declaration,

Damages etc.

SPOUSES GREGORIO AND MARIALOURDES SAMSON, SPOUSES FEDERICOAND RUTH- JARANTILLA,PEARL OF BORACAY LANDHOLDINGS INC.,(OWNER/ OPERATOR OF PEARL OF THE PACIFIC)GREGORIO ALFREDO SANSON, MA. RITA GLORIAT. SANSON, LEO MONTINOLA, THE PROVINCIALASSESSOR OF KALIBO, AKLAN AND THEMUNICIPAL ASSESOR OF MALAY, AKLAN

Defendants,x----------------------------------------------------x

FORMAL OFFER OF EVIDENCE

Plaintiff, by counsel, respectfully submits its formal offer of documentary exhibits in support of its prayer in the Complaint dated, January 15, 2008 for the nullification of the deed of donation, reversion of property to the estate, recovery of possession, cancellation of tax declaration, and damages.

EXHIBITS

DESCRIPTION PURPOSE

Exhibit “A”

Deed of Donation executed by Roberto H. Tirol Sr., in favor of defendants Ruth Tirol-Jarantilla and Ma. Lourdes Tirol-Sanson.

1.That Roberto H. Tirol Sr. donated the subject parcel of land situated in the Barrio of Balabag, Municipality of Malay, Province of Aklan Island of Boracay in favor of defendants Ruth Tirol-Jarantilla and Ma. Lourdes Tirol-Sanson.

2.That, in the alternative, the deed of donation contained a clause that limited the use of the donated land as a memorial garden in honor of the Donor and the Late Gloria L. Tirol and the defendants violated the clause which in turn voided the deed of donation

Exhibit “B”

Affidavit of Roberto H. Tirol Sr. confirming the Deed of Donation.

As further evidence of the Donation made by Roberto H. Tirol Sr.

Exhibit Certification from Marietta 1. That the deed of donation was not

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“C” R. Chou, acting director of the archive division of the Register of Deeds, that no notarial is on file with the office of Pablo Tolentino, a notary public who allegedly notarized the deed of donation.

properly notarized and the apparent notarization of the deed was either false or non-existent.

2. That the deed of donation was not in the form of a public instrument and does not have legal efficacy, hence it could not have transferred any right, title or interest over the subject parcel of land to the defendants.

Exhibit “D”

Re-Survey of Engineer Certeza of the subject property to find out which areas therein the said structures have been built or caused to be built by the defendant.

1. That the defendants used the subject property as a commercial health spa and resort, which is not the purpose intended by the deed of donation.

2. That the defendants built improvements on the subject property such as the swimming pool, resort clubhouse, cottages and a spa, among others, contrary to the provisions of the deed of donation and as such are deemed builders in bad faith. Therefore, defendants are not entitled to any reimbursement or compensation in whatever form from the Plaintiffs.

Exhibit “E”

Certification issued by the Bureau of Internal Revenue regarding the date of the payment of the applicable donor’s tax.

1. That the applicable donor’s tax was not yet paid at the time of the death of Roberto Tirol Sr., the donor, as such the subject parcel of land of the deed of donation automatically formed part of the latter’s estate, in accordance with Philippine tax laws.

2. That the delayed payment of the applicable donor’s tax, after the death of Roberto Tirol Sr. did not in anyway cure the fatal omission of its non-payment within the time prescribed by Philippine tax laws.

Exhibit “F”

Authority to accept payment issued by Bureau of Internal Revenue regarding the payment of the applicable donor’s tax.

That the applicable donor’s tax was not yet paid at the time of the death of Roberto Tirol Sr., the donor, as such the subject parcel of land of the deed of donation automatically formed part of the latter’s estate, in accordance with Philippine tax laws.

Exhibit “G”

Business permit issued by the local government to defendant Federico Jarantilla involving the subject property.

That the defendants used the subject property as a commercial health spa and resort, which is not the purpose intended by the deed of donation.

Exhibit “H”

Construction Permit obtained by defendant Federico Jarantilla for the construction of a swimming pool, cottages and a bar.

That the defendants built improvements on the subject property such as the swimming pool, resort clubhouse, cottages and a spa, among others, contrary to the provisions of the deed of donation and as such are deemed builders in bad faith. Therefore, defendants are not entitled to any reimbursement or

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compensation in whatever form from the Plaintiffs.

PRAYER

WHEREFORE, it is respectfully prayed that the foregoing exhibits be admitted in evidence for the purpose/s for which they are offered and as part of the testimony of the witness presented by the plaintiffs.

Other reliefs just and equitable are likewise prayed for.

Quezon City, February 27, 2012

George Matthew HabaconCounsel for Plaintiff

IBP Lifetime No. 67891; 5/10/2005PTR No. 44568; 1/10/2011

Roll of Attorney No. 2005-001023MCLE Compliance No. III – 000899

Copy Furnished:

Atty. CelestinoHilvanoCounsel for Defendant2nd Floor, Lomat ApartmentIII-B Pasadena St., Pasay City

25

SPECIAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS:

I, Anna Banana, single, of legal age, with residence and postal address at 111 Evangelista Street, Makati City, do hereby name, constitute, and appoint MARIA PAPAYA, single, likewise of legal age, resident of 143 Legarda Street, Manila, to be my true and lawful attorney, for me and in my name, place, and stead, within a period of ten (10) months, to SELL, TRANSFER AND CONVEY, for a price not less than FIVE MILLION PESOS (P5,000,000), to whosoever may buy or purchase the described real property, to wit:

Unit 1611, Serendra Condominum, Global City, Taguig, with an area of more or less 42 square meters, with one parking slot,of which I am the registered owner, as evidenced by Condominium Certificate of Title No. 3711 of the Registry of Deeds of Taguig City, and to receive the purchase price from the sale of the said property; and

HEREBY GIVING AND GRANTING unto my said attorney-in-fact full powers and authority to execute and perform all and every act necessary to carry into effect the foregoing authority to sell, as fully to all intents and purposes as I might or could lawfully do if personally present, with full power of substitution and revocation, and hereby ratifying and confirming all that my said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.

IN WITNESS WHEREOF, I have hereunto set my hand this 27th day of February 2012, in Makati City, Philippines.

_____Anna Banana _____ Principal

SPECIMEN SIGNATURE OF ATTORNEY-IN-FACT:_______Maria Papaya____________Attorney-in-fact

WITNESSES:

_________Claire Pear_____________ ______Florence Orange____________

ACKNOWLEDGMENT

Republic of the Philippines ) _________________________) S.S BEFORE ME, personally appeared: Name License No. Expiry Date/Place Issued

Anna Banana N25-12-000-178 Jan.15, 2014 / LTO East Avenue, Quezon CityMaria Papaya N25-12-111-183 Jun. 1, 2014 / LTO East Avenue, Quezon City

Known to me and to me known to be the same persons who executed the foregoing instrument and acknowledged to me that the same is their free and voluntary act and deed.

26

WITNESS MY HAND AND SEAL, on the date and place first above written.

Notary Public

Doc. No.______;Page No. ______;Book No.______;Series of 20___.

27

GENERAL POWER OF ATTORNEY KNOW ALL MEN THESE PRESENTS: I, Anna Banana, of legal age, single, Filipino, a resident of 111 Evangelista St., Makati City, do hereby name, constitute, and appoint Maria Papaya, single, likewise of legal age, resident of 143 Legarda Street, Manila, to be my true and lawful attorney, for me and in my name, place, and stead, to do and perform the following acts and things to wit:

To administer, manage, and to do all other acts in connection with the administration and management of Lingerie Shop, Inc. To ask, demand, sue for, recover, collect any and all sums of money, debts, dues, accounts, and other things of value of whatever nature or kind as may now be or may hereafter become due, owing, payable or belonging to me, and to have, sue, and to take any all lawful ways and means for the recovery thereof by suit, attachment, compromise or otherwise; To make, sign, execute, and deliver contracts, agreements, documents and other writings of whatever nature or kind, with any and all third persons, entities or concerns, upon terms and conditions acceptable to my said attorney; To delegate in whole or in part any all of the powers herein granted or conferred, by means of an instrument in writing, in favor of any third persons whom my said attorney may select; HEREBY GIVING AND GRANTING unto my said attorney full power and authority whatsoever requisite or necessary or proper to be done in and about the premises as fully to all intents and purposes as I might and could lawfully do if personally present, with power of substitution and revocation, and hereby, ratifying and confirming all that my said attorney or his substitute shall lawfully do or cause to be done under and by virtue of these presents.

IN WITNESS WHEREOF, I have hereunto set my hand this 27th day of February 2012, in Makati City, Philippines. _________Anna Banana____________ _______Maria Papaya____________ (Principal) (Agent /Attorney-In-Fact) Signed in the presence of: _________Claire Pear___________________Florence Orange____________

ACKNOWLEDGMENT

Republic of the Philippines ) _________________________) S.S BEFORE ME, personally appeared:

Name License No. Expiry Date/Place Issued

Anna Banana N25-12-000-178 Jan.15, 2014 / LTO East Avenue, Quezon CityMaria Papaya N25-12-111-183 Jun. 1, 2014 / LTO East Avenue, Quezon City Known to me and to me known to be the same persons who executed the foregoing instrument and acknowledged to me that the same is their free and voluntary act

28

and deed.

WITNESS MY HAND AND SEAL, on the date and place first above written.

Notary Public

Doc. No.______;Page No. ______;Book No.______;Series of 20___.

29

Republic of the Philippines )City of Manila ) s.s.

DEED OF DONATION INTER VIVOS

KNOW ALL MEN BY THESE PRESENTS:

This Deed of Donation, made and executed by JUANITA T. PELAEZ of legal age, single and resident of No. 56 Pinaglabanan St., Sta. Ana, Manila (DONOR) in favor of RUFINA P. TIBURCIO, of legal age, single and resident of No. 02 Mountain View St., San Juan, Manila (“DONEE”) WITNESSETH:

That the DONOR is the owner of that certain real property with the buildings and improvements thereon, situated in No. 813 Lepanto, Sampaloc, Manila and more particularly described in Original Transfer Certificate of Title No. 42417 of the land registry of Manila as follows:

A PARCEL OF LAND (Lot No. 20 of Block No. 4002 of the Cadastral Survey of the City of Manila, situated in the District of Sampaloc. Bounded on the NE. by lot No. 22 of Block No. 4002; on the SE. by Lot No. 21 of Block No. 4002; on the SW. by Lot No. 18 of Block No. 4002. . . containing an area of NINETY FOUR SQUARE METERS AND EIGHTY SQUARE DECIMETERS (94.80), more or less. . .

That for and in consideration of the love and affection which the DONOR has for the DONEE, the said DONOR, by these presents, transfers and conveys, by way of donation, unto said DONEE, her heirs and assigns, the above described real property with all the buildings and improvements thereon, free from all liens and encumbrances;

That the DONOR does hereby state, for the purpose of giving full effect to this donation, that she has reserved for herself in full ownership sufficient property to support her in a manner appropriate to his/her needs;

That the DONEE does hereby accept this donation of the above-described property, and does hereby express gratitude for the kindness and liberality of the DONOR.

IN WITNESS WHEREOF, the DONOR and the DONEE have signed this deed on 27 February 2012 and at Manila, Philippines.

(Sgd.) JUANITA T. PELAEZDonor

ACCEPTED:

(Sgd.) RUFINA P. TIBURCIODonee

SIGNED IN THE PRESENCE OF:

JULIO T. PELAEZ

MARIA P. TIBURCIO

30

Acknowledgment


BEFORE ME, this 27th day of February 2012 in the City of Manila, Philippines, personally appeared JUANITA T. PELAEZ, with Valid Identification Document (Driver’s License No. N25-07-007777) issued by the official agency (Land Transportation Office) on 10 January 2012, known to me to be the same person who executed the foregoing instrument, and who acknowledged to me that the same is his free act and deed.

IN WITNESS WHEREOF, I have set my hand and affixed my Notarial seal on the day, year and place written.

(Sgd.) ATTY. NOLI A. TARIO

Notary PublicUntil 2013

PTR No. 5099698Issued at Manila,

PhilippinesOn January 10, 2012

Doc. No. 735Page No. 147Book No. IISeries of 2012

31

Republic of the Philippines )Manila City ) s.s.

DEED OF ABSOLUTE SALE


I, JUANITA T. PELAEZ, Filipino, married, and resident of No. 56 Pinaglabanan St., Sta. Ana, Manila, for and in consideration of the amount of ONE MILLION PESOS (Php 1,000,000.00) paid to me today by RUFINA O. TIBURCIO, Filipino, single and resident of No. 02 Mountain View St., San Juan, Manila, do hereby SELL, TRANSFER and CONVEY absolute and unconditionally unto said RUFINA O. TIBURCIO that certain parcel of land, together with the buildings and improvements thereon situated in the City of Manila, and more particularly described as follows:

A PARCEL OF LAND (Lot No. 20 of Block No. 4002 of the Cadastral Survey of the City of Manila, situated in the District of Sampaloc. Bounded on the NE. by lot No. 22 of Block No. 4002; on the SE. by Lot No. 21 of Block No. 4002; on the SW. by Lot No. 18 of Block No. 4002. . . containing an area of NINETY FOUR SQUARE METERS AND EIGHTY SQUARE DECIMETERS (94.80), more or less. . .

of which I am the registered owner in fee simple, my title thereto being evidenced by Original Certificate of Title No. 42417, issued by the Register of Deeds of Manila.

It is hereby mutually agreed that the vendee shall bear all expenses for the execution and registration of this deed of sale.

IN WITNESS WHEREOF, I have signed this deed this 27th day of February 2012 at Manila.

JUANITA T. PELAEZVendor

With my consent:

FILOMENO C. PELAEZVendor’s Husband


JULIO T. PELAEZ

MARIA K. TIBURCIO

32

Acknowledgment









33

Republic of the Philippines )Manila City ) s.s.

PLEDGE OF SHARES OF STOCK


This Pledge of Shares of Stock is executed this February 27, 2012 by and between:

JUANITA T. PELAEZ of legal age, Filipino and a resident of No. 56 Pinaglabanan St., Sta. Ana, Manila, hereinafter referred to as the PLEDGOR;

- and–

TIBURCIO LENDING CORPORATION, a corporation duly organized and existing in accordance with laws of the Republic of the Philippines, with principal offices at No. 09 Ayala Avenue, San Juan, Manila represented in this act by its President, FILOMENA O. TIBURCIO, hereinafter referred to as the PLEDGEE.

-WITNESSETH-

WHEREAS, the Pledgor has secured a loan (hereinafter referred to as the “Debt”) from Pledgee in the amount of ONE HUNDRED THOUSAND PESOS (PHP 100,000.00) receipt of which is acknowledged and confirmed herein by the parties.

WHEREAS, Pledgor, as security for said loan (hereinafter referred to as “Collateral”), hereby deposits, delivers to and pledges to Pledgee shares of stock in Tiburcio Corporation, represented by the following stock certificates:

Certificate Number

No. of Shares Total Par Value

2 350 Php 35,000.005 450 Php 45,000.008 200 Php 20,000.00

NOW THEREFORE, the parties agree as follows:

1. Pledgee may assign or transfer said Debt and the Collateral pledged hereunder to any third party provided fifteen (15) days prior written notice is given to Pledgor and Pledgor is given an opportunity to redeem and pay the Debt within fifteen (15) days from notice.

2. In the event a stock dividend or further issue of stock in the Corporation is issued, Pledgor shall pledge said shares as additional collateral for the debt.

3. During the term hereof and as long as there is no default, Pledgor shall have full rights to vote said shares and be entitled to all dividends income, except that stock dividends shall be pledged.

4. During the pendency of this agreement, Pledgor shall not issue any proxy, voting trust agreement or assignment of rights to the pledged shares.

34

5. Pledgor warrants and represents good title to the shares which are free from liens and encumbrances or prior pledge with full authority to transfer said shares as collateral security.

6. Upon default of payment of the debt, or breach of this agreement, Pledgee or transferee shall have full rights to foreclose pursuant to law.

7. Pledgor understands that upon foreclosure the pledged shares may be sold at public auction or public sale with right to receive reasonable prior written notice of any said intended sale and with full rights to redeem said shares at any time prior to said sale upon payment of the balance due, and accrued costs of collection. In the event the shares shall be sold for less than the amount then owing, Pledgor shall be liable for any deficiency.

8. Upon payment of the debt, the shares shall be returned to Pledgor and this pledge agreement shall be terminated.

9. This pledge agreement shall be binding upon and inure to the benefit of the parties, their successors, assigns and personal representatives.

10. Upon default the Pledgor shall pay all reasonable attorneys' fees and cost of collections.

11. This Deed shall be governed and constructed in accordance with the laws of the Philippines.

12. This Agreement constitutes the entire understanding between the parties and may only be modified, altered or amended only with the prior written consent of the party of or parties against whom, such modification, alteration, or amendment shall take effect.

IN WITNESS WHEREOF, the parties have executed this Agreement on the date and place above specified.

PLEDGOR PLEDGEE

(Sgd.) JUANITA T. PELAEZ (Sgd.) FILOMENA O. TIBURCIO President of TIBURCIO CORPORATION


ATTY. TOPACIO TUPAZ

ATTY. VIVENCIO CUYVAS

35

ACKNOWLEDGMENT









36

ACKNOWLEDGMENTRepublic of the Philippines )City of Manila ) s.s.

BEFORE ME, this 13th day of April, 2007 in the City of Manila, Philippines, personally appeared ATTICUS FINCH, with [Valid Identification Document] (Driver’s License No. N25-07-007777) issued by the [official agency] (Land Transportation Office) on 10 January 2007, known to me to be the same person who executed the foregoing instrument, and who acknowledged to me that the same is his free act and deed.


(Sgd.) N. O. TARIONotary Public

Until __________________

PTR No. _______________

Issued at ______________

On ___________________

Doc. No.Page No.Book No.Series of 2007

37

JURAT

SUBSCRIBED AND SWORN TO before me in the City of _______________ on this day of _________________, affiant exhibiting before me his community tax certificate no. _______________ issued on __________________ at _____________________.

(Sgd.) N. O. TARIONotary Public

Until __________________PTR No. _______________Issued at ______________

On ___________________

Doc. No.Page No.Book No.Series of 2007.

38

Sample Legal Memorandum:

MEMORANDUM FOR THE PLAINTIFF

The defense, unto this Honorable Court, most respectfully states:

STATEMENT OF THE FACTS

This is a criminal case of murder involving the shooting of the victim arising from self-defense.

In the early evening of May 16, 1998, accused had visitors at his residence at Pagrai Hills, Unit IV, Mayamot, Antipolo City. While he was preparing food for his visitors, the deceased apparently punctured the rear tire of the Tamaraw vehicle of one of the visitors. The accused saw that it was his brother, who did such act since the Tamaraw was right in front of the griller in the terrace where the accused was preparing the food. Upon seeing this, the accused shouted at his brother and went down immediately to the vehicle together with his visitors. The deceased just quickly walked towards his house, which was located right beside the house of the accused as they were neighbors.

After changing the tire of the Tamaraw, the deceased started to come towards the accused to which the accused responded by confronting him. While they were arguing, the wife (Purificacion Medina) and the son (Jimmy Medina) of the accused, started asking the deceased why he stabbed the rear tire of the Tamaraw. This irritated the deceased who then charged towards the wife and the son of the accused with a kitchen knife he had been holding. The accused told his wife and son to go inside their sari-sari store. He then proceeded to get his gun from the same store and told the deceased that something might happen if he does not stop. The deceased started to walk back to his house, at which point the accused shouted to the wife of the deceased to lock him up as the accused believed that the deceased was planning to do something.

The accused then advised his visitors that they can already leave and that he will replace the tire that his brother punctured. While the accused was standing beside the Tamaraw and watching his visitors get inside the vehicle, the son of the accused shouted to warn him that the deceased was coming towards him with two knives. The accused was able to avoid two blows from the deceased by stepping back. He then pulled his .45 caliber pistol out and fired two warning shots in the air, which the deceased just ignored.

The deceased attacked again to which the accused, in self-defense, fired two shots at the deceased. After firing the shots, the deceased then ran for cover behind the jeep. The accused then went inside his house and went up to the third floor.

ISSUE OF THE CASE

Whether or not the accused shot the deceased in self-defense, therefore entitling him to an acquittal

ARGUMENT

The accused should be acquitted on the ground of self-defense

Self-defense is a justifying circumstance under Article 11 of the Revised Penal Code, to wit:

“Art. 11. Justifying circumstances. — The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

39

First. Unlawful aggression. Second. Reasonable necessity of the means employed to prevent or repel it. Third. Lack of sufficient provocation on the part of the person defending himself.”

Self defense is present in the case at bar for the following reasons. First, there was unlawful aggression on the part of the deceased. According to People v. Crisostomo (108 SCRA 288), there is unlawful aggression when the peril to one’s limb or right is either actual or imminent. There must be actual physical force or actual use of weapon. In People v. Pasco (137 SCRA 137), the Court stated that unlawful aggression presupposes an actual, sudden, and unexpected attack, or imminent danger thereof, and not merely a threatening or intimidating attitude.

In the case at bar, the deceased, while holding a knife, charged the accused while he was watching his visitors board their vehicle. The accused had his back turned towards the deceased. If not for the timely warning of the accused’s son, the accused would have been stabbed on the back. The deceased also attempted to slash at the accused, such slashes having been fortunately evaded by the latter. Clearly, there was an actual danger facing the accused.

Second, there was a reasonable necessity of the means employed to prevent or repel the attack. The case of People v. Padua (40 O.G. 998) provides that:

“Perfect equality between the weapon used by the one defending himself and that of the aggressor is not required because the person assaulted does not have sufficient tranquility of mind to think, to calculate and to choose which weapon to use.”

Similarly, the Court held in the case of People v. Encomienda (46 SCRA 522) that:

“Reasonable necessity of the means employed does not imply material commensurability between the means of attack and defense. What the law requires is rational equivalence, in the consideration of which will enter as principal factors the emergency, the imminent danger to which the person attacked is exposed, and the instinct, more than reason, that moves or impels the defense, and the proportionateness thereof does not depend upon the harm done, but rests upon the imminent danger of such injury.”

In the case at hand, the deceased attacked the accused with the use of two knives. After the accused evaded two blows from the deceased, he fired warning shots into the air. Despite all of these, the deceased continued his attack. Thus it was perfectly reasonable for the accused to have shot the deceased twice in order to save his own life. Otherwise, he certainly would have been stabbed by the deceased who was holding not one, but two knives.

Although a gun was used against a knife-wielder, the two men were in close proximity to each other at the time of the attack that the deceased would have surely stabbed the accused had the latter not successfully dodged his blows. Thus the advantage of a longer target range given by the gun vis-à-vis a knife was effectively cancelled by the fact that the actual distance between the two men was only 1 meter. The use of the gun was therefore justified.

Third, there was no sufficient provocation on the part of the accused. The initial altercation wherein the accused told the deceased “Pumasok ka nang bahay

40

mo, kung hindi may mangyayari”, cannot be considered as sufficient provocation. The case of People v. Alconga (78 Phil. 366) provides that the provocation must be sufficient, which means that it should be proportionate to the act of aggression and adequate to stir the aggressor to its commission. Clearly, the statement of the accused should not have stirred the deceased into attempting to kill the accused because it was said in response to an initial act of aggression by the deceased.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that the accused be ACQUITTED.

Other reliefs just and equitable under the premises are likewise prayed for.

RESPECTFULLY SUBMITTEDMakati City, March 1, 2012.

COUNSELS FOR THE ACCUSED:

Atty. Carlos GarciaAtty. George Matthew Habacon

Atty. Stefano Dong Chul HanAtty. Gabrielle Ocampo

Atty. Cheska PazziuaganAtty. Maria Christina Rabonza

41

Sample Legal Opinion:

BASCUNA CHUA DE JESUS DYCHITAN LANETE and OLALIA (BCOLD)LAW OFFICES

Unit 21B, One Rockwell CondominiumRockwell Drive, Makati City

28 February 2012

MR. JOEY ‘PEPE’ SMITH Email Address: [email protected]

Re: Nullification of Certificate of Extrajudicial Sale[Our Ref. No. 1234.12.34]----------------------------------------

Dear PEPE:

We respond to your query on whether you may seek the nullification of the certificate of sale issued in favor of JUAN DELA CRUZ BANK (the “BANK”) concerning a parcel of land that it had purchased at an extrajudicial foreclosure sale.

Please note that our comments hereunder are based solely on the foregoing facts and the information you provided us via telephone conversation.

We understand that you mortgaged a 500m2 parcel of land located in Novaliches, Quezon City to the BANK as security for a Php 1,000,000.00 loan which the latter extended to you. Given that you were unable to comply with your obligation to pay the loan, the BANK extrajudicially foreclosed on your property and was the highest bidder at the ensuing sale. The certificate of sale contained the following provision:

It is hereby required of said highest bidder that a statement of any amount of assessment taxes which may have been paid on account of this purchase and such other liens chargeable to the redemptioner, with proof thereof, be submitted within thirty (30) days immediately preceding the expiration of the period of redemption, furnishing [the Court] a copy thereof, as required by law, for purposes of computing the actual amount payable by the mortgagor/redemptioner in case of redemption.

You ask us whether the certificate of sale may be nullified because the BANK failed to comply with the said provision. We submit that non-compliance with the stipulation provided in the certificate of sale comes within the concept of a “breach of trust” or “misconduct” – a ground to annul the said certificate.

1. The applicable law

In our jurisdiction, the procedure governing extrajudicial foreclosure sales is governed by Act No. 3135,1 which applies to sales “made under a special power inserted in or attached to any real estate mortgage made as security for the payment of money or the fulfillment of any other obligation.”2 The law applies with particularity to extrajudicial foreclosures made by banks.3 With respect to redemption of property sold at an extrajudicial sale, Section 6 of the Act provides:

1 An Act to Regulate the Sale of Property Under Special Powers Inserted in or Annexed to Real Estate Mortgages, Act No. 3135, Section 1.

2 Id.

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mailto:[email protected]

In all cases in which an extrajudicial sale is made … redemption shall be governed by the provisions of sections [twenty nine to thirty one and thirty five of the 1997 Rules of Civil Procedure]4 insofar as these are not inconsistent with the provisions of this Act.

As such, Section 28, Rule 39 of the 1997 Rules of Civil Procedure provides:

The judgment obligor, or redemptioner, may redeem the property from the purchaser, at any time within one (1) year from the date of the registration of the certificate of sale, by paying the purchase the amount of his purchase, with one percentum per month interest thereon in addition, up to the time of redemption, together with the amount of any assessments or taxes which the purchaser may have paid thereon after purchase, and interest on such last named amount at the same rate; and if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien, with interest.5

Reading the two provisions together, in order to validly redeem property

sold in an extrajudicial sale, the mortgagor/redemptioner should pay 1) the purchase price, 2) the amount of taxes paid by the purchaser and 3) other liens on the property. The redemption amount also includes any interest accrued on the three amounts mentioned.

If no redemption is made within the prescribed period, the purchaser becomes the absolute owner of the property. He has the absolute right to a writ of possession6 which is the final process to carry out or consummate the extrajudicial foreclosure. Henceforth, the mortgagor loses his right over the property.7

2. The certificate of sale may be nullified on grounds of breach of trust or misconduct by the purchaser.

Under Section 8 of Act No. 3135, the debtor may, in the proceedings in which possession was requested, petition that the sale be set aside and the writ of possession in favor of the purchaser cancelled because the sale was not in accordance with the Act.8 He may ask for the annulment of the sale on the ground of fraud, collusion, accident, mutual mistake, breach of trust or misconduct by the purchaser.9

Among all these grounds, “breach of trust” or “misconduct” by the purchaser would best fit a situation where a bank fails to comply with provisions of the certificate of sale. It is therefore necessary to discuss how the failure or refusal of the purchaser to comply with the duty prescribed in the certificate of sale constitutes a breach of trust or misconduct.

3. Non-compliance with the stipulation constitutes breach of trust or misconduct by the purchaser.

First, the non-compliance is an outright violation of the law. The provision requiring the BANK to submit a statement of all assessed taxes and liens on the

3 Philippine National Bank v. Court of Appeals, 140 SCRA 360 (1985).4 Formerly embodied in Sections four hundred and sixty four to four hundred and sixty six, inclusive,

of the Code of Civil Procedure. See Hector De Leon, Comments and Cases on Credit Transactions 560 (2010 ed.)

5 1997 Rules of Civil Procedure, Rule 39, Section 28 (emphasis supplied). 6 Philippine Commercial International Bank v. Court of Appeals, 344 SCRA 596 (2000). 7 Bernardez v. Reyes, 201 SCRA 648 (1991).8 GSIS v. Court of Appeals, 266 SCRA 187 (1997).9 UCPB v. Spouses Beluso, 530 SCRA 567 (2007).

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property is a legal requirement which enables the redemption price to be determined within a reasonable time. In Hi-Yield Realty, Inc. v. CA,10 the Supreme Court held that as soon as the redemption price is determined, the redemptioner must make prompt payment in full. Unless this is done, the redemptioner cannot make an actual tender in good faith of the full redemption price.11

Second, the non-compliance is in contravention of the policy behind the law, which seeks to aid, rather than defeat the right of redemption. In Tibajia vs. Court of Appeals,12 the Supreme Court held:

Where redemption is proper, the purchaser at the foreclosure sale cannot refuse to allow the same, considering that his right over the property is purely inchoate until after the period of redemption has elapsed without the right being exercised by those allowed by law. Furthermore, public policy demands that the original debtor … should, as much as possible, be allowed to redeem a foreclosed property.13

Any act that defeats the public policy can be seen as a breach of trust or misconduct that would give cause to annul the certificate of sale.

A contrary view would allow the purchaser to defeat the debtor’s right to redeem his property simply by refusing to comply with his duty to inform the latter of the amount of taxes he has paid and other liens on the property. After the one-year period to redeem the property expires, the debtor will have no more right to redeem the property.

RECOMMENDATION:

We recommend the filing of a petition to annul the certificate of sale on grounds of breach of trust or misconduct by the purchaser. The breach of trust or misconduct should be premised on the purchaser’s non-compliance with the duty imposed on the purchaser in the certificate of sale. The petition to annul the certificate of sale should be filed in the court that presided over the foreclosure proceedings and ordered the issuance of the certificate of sale.

Note, however, that such a petition does not stop the issuance of the writ of possession in the BANK’s favor. Therefore, an injunction suit seeking to prohibit the issuance of the writ is not a proper remedy.14

We do not recommend the filing of an action to redeem the property. The exercise of the right of redemption is an implied admission of the regularity of the extrajudicial sale and estops the mortgagor from impugning its validity on that ground. Redemption is inconsistent with the claim of the invalidity of the sale.15

We await your instructions.

Very truly yours,

JOSEPH D. DE JESUS

10 Hi-Yield Realty, Inc. v. CA, G.R. No. 138978, September 12, 2002. 11 Id.12 Tibajia v. Court of Appeals, 193 SCRA 581 (1991).13 Id.14 Kho v. Court of Appeals, 203 SCRA 160 (1991); Veloso v. Intermediate Appellate Court, 205

SCRA 227 (1992).15 Aclon v. Court of Appeals, 387 SCRA 415 (2002).

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