Republic of the Philippines

Regional Trial Court

__ Judicial Region
___________
________________________

______________________

Plaintiff, Civil Case No. __________

- versus -

_______________

Defendant. For: COLLECTION SUM OF

MONEY
x--------------------x

DEFENDANT’S MEMORANDUM

COMES NOW Defendant, through the undersigned counsel,

unto this Honorable Court most respectfully submits and presents this
memorandum in the above-titled case and avers that:

AND BY WAY OF MEMORANDUM

Defendant _____________, thru the undersigned counsel and
unto this Honorable Court, respectfully submits this MEMORANDUM
in compliance with the 19 September 2018 Order of this Honorable
Court which was received by defendant on 9 October 2018, requiring
the parties to file their respective Memorandum within thirty (30) days
from receipt or thereof.

STATEMENT OF THE CASE

On April 2, 2018, the Plaintiff filed a complaint for Collection of

Sum of Money against the Defendant. On April 24, 2018, the
Defendant received the summons by this Honorable Court to file an
answer. Subsequently, On April 28, 2018, the Defendant filed an
answer against the Plaintiff.

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 STATEMENT OF THE FACTS

In order that this Honorable Court may be enlightened and

guided in the judicious disposition of the above-entitled case, cited
hereunder are the material, relevant and pertinent facts of the case,
to wit:
The plaintiff and defendant agreed and executed a contract of loan
in favor of the latter (herein attached as Annex 1) with the principal
amount of FIVE HUNDRED THOUSAND PESOS (P 500,000.00).
According to the loan agreement, the defendant shall pay the
amount on monthly installments of FIFTY THOUSAND PESOS (P 50,
000.00); plus, with a monthly interest of ONE PERCENT (1%) of the
principal amount, hence, equivalent to FIVE THOUSAND PESOS (P
5,000.00) per month. Further, the payment of the monthly
installments shall start on February 5, 2017. However, allegedly the
plaintiff extrajudicially demanded for the defendant’s payment.
Consequently, the defendant got involved into a bad investing
scam. She invested the amount she loaned to MS. PORSHE W.
CITROEN. She lost all the money.
The plaintiff knew of the defendant’s circumstance. The defendant
asked the plaintiff for a grace period to pay her loan and the plaintiff
agreed to the former’s request. Unfortunately, such agreement was
not put into writing. Further, the plaintiff did not attempt to demand
repayment from the defendant.
Subsequently, in a heated argument between the parties, the
plaintiff –in the feat of anger –mentioned the loan but there was no
mention of any means of collection. On December 2018, the
defendant received a notice from this Honorable Court to file an
answer for the complaint of collection of sum of money filed against
her by the plaintiff.

STATEMENT OF ISSUES

1. Whether or not the agreed loan between the plaintiff and the
defendant has already become due and demandable despite
the lack of demand on the part of the plaintiff; and

2. Whether or not the agreed loan has already become due and
demandable after the oral agreement between the plaintiff and
the defendant for a grace period to pay the loan.
2
 ARGUMENTS

1. Whether or not the agreed loan between the plaintiff and the
defendant has already become due and demandable despite
the lack of demand on the part of the plaintiff

Article 1100 of the Civil Code of the Philippines states that,

“Persons obliged to deliver or to do something
are in default from the moment the creditor
demands of them judicially or extrajudicially
the fulfillment of their obligation.”
The creditor has the role to demand, whether judicially or
extrajudicially, the payment or the performance of the debtor in
instances where the agreement did not specify the date of the
payment or performance in order for the debtor to be considered in
default.
In the case at bar, the agreement between the plaintiff and the
defendant only constituted the: a.) principal amount of the loan; b.)
mode of payment; c.) the monthly interest rate; and d.) the date of the
start of payment. Clearly, the promissory note did not show the
definite date when the loan can become due and demandable.
Further, it is clear that the plaintiff has the lack of intent to
demand the payment from the defendant. Both parties are considered
close with each other, yet the plaintiff failed to demand the payment
which would make the defendant be in default of her obligation.
Without DEMAND, the effects of default shall not arise.
2. Whether or not the agreed loan has already become due and
demandable after the oral agreement between the plaintiff and
the defendant for a grace period to pay the loan.
The New Civil Code defines contract as “a meeting of the minds
between two persons whereby one binds himself, with respect to the
other, to give something or to render some service” (Article 1305,
New Civil Code of the Philippines). And “when two parties come
together and agree on the terms and conditions of their contract, such
terms and conditions have the force of law between them and, thus,
must be complied with in good faith” (Article 1159, New Civil Code of
the Philippines).
In the instant case presented before this Honorable Court, it is
the contention of the defendant’s side that both the plaintiff and the
defendant have agreed to extend the deadline for the payment of the
3
loan. The oral agreement between the two parties for such extension
is binding between them. The act of the defendant requesting for the
extension and the acceptance of such request by the plaintiff, already
constitutes the “meeting of the minds”, a requisite of a valid contract.
Further, the defendant contends that the act of asking for an
extension to pay for the obligation does not necessarily imply that the
debtor is in default already.

CONCLUSION

With laws presented, the defendant, through her counsel

believes that the plaintiff has no cause of action in filing the suit
based on lack of demand on the contract of loan; and that, the
contract of loan has yet to become due and demandable.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed

unto this Honorable Court that an Order be issued in favour of the
defendant and dismissing the instant case.

Other reliefs deemed just, proper and equitable in the premises are
likewise most respectfully prayed for.

RESPECTFULLY SUBMITTED.

Malaybalay City, Bukidnon, Philippines, 19 October 2018.

___________________
Counsel for Defendant-Appellant

EXPLANATION & PROOF OF SERVICE

A copy of the foregoing pleading was furnished to plaintiff’s and

private defendant’s respective counsels, via Registered Mail with
Return Card, at their respective offices in view of the distance and
manpower constraints, making personal service costly and
impractical.
4
Copy Furnished:

_______________________
Counsel for Plaintiff-Appellee
____________________

5
 Republic of the Philippines
Regional Trial Court
10th Judicial Region
Branch 41
Malaybalay City, Bukidnon

MARI MARGARETTE A. RIVAS

Plaintiff, Civil Case No. 5462-13

- versus -

KAREN O. POH

Defendant. For: COLLECTION SUM OF

MONEY
x--------------------x

MOTION FOR RECONSIDERATION

(Of the Decision Dated January 3, 2019)

COMES NOW the defendant, KAREN O. POH, by the

undersigned attorney and within the reglementary period prescribed
by the Rules of Court hereby files this motion for reconsideration
from the judgement rendered by Honorable Faye T. Ebcas of
Regional Trial Court Branch 41 by virtue (copy of which is attached in
Annex “A”) and in support thereof states:

1. On February 1, 2019, the undersigned counsel for the

defendant received a copy of this Honorable Court’s Resolution
denying the Defendant’s Memorandum for the Collection of Sum of
Money. The dispositive portion of the Resolution states:

“WHEREFORE, premises considered, judgment is hereby

rendered in favor of plaintiff Mari Margrette A. Rivas and
against defendant Karen O. Poh.”

2. There was no clear explanation on the denial of the

Defendant’s memorandum other than, to wit:
“xxx defendant fell short to sufficiently rebut Plaintiff’s
claims.”

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 3. The defendant respectfully moves for the reconsideration of
the above-cited resolution based on the following ground:

That in a Civil case the burden of proof rests on the strength of

the case of the plaintiff. And that s/he must have the preponderance
of evidence to prove the acts or omission of the defendant. In the
case at bar, the plaintiff only presented the promissory note.
However, she failed to show before this Honorable court the needed
demand against the defendant for the obligation.

PRAYER
WHEREFORE, it is most respectfully prayed that the instant
petition be considered by the Honorable Court and further grant the
defendant other relief be granted as shall be deemed just and
equitable in the premises

RESPECTFULLY SUBMITTED.

Malaybalay City, Bukidnon, Philippines, January 15, 2019.

ATTY. CANDICE R. ALTOMERA

Counsel for Defendant-Appellant
Malaybalay City, Bukidnon
ROLL No. 91980, April 26, 2007
MCLE Compliance No. V – 0009435, 07-27-15
MCLE Compliance No. VI – 0007931, 10-14-17
IBP OR NO. 096871, PTR NO. 8159327
Both issued on, December 27, 2018
at Malaybalay City, Bukidnon

EXPLANATION & PROOF OF SERVICE

A copy of the foregoing pleading was furnished to plaintiff’s and

private defendant’s respective counsels, via Registered Mail with
Return Card, at their respective offices in view of the distance and
manpower constraints, making personal service costly and
impractical.

Copy Furnished:

ATTY. PORCHIA P. SERRANO

Counsel for Plaintiff-Appellee
Casisang, Malaybalay City