Beruflich Dokumente
Kultur Dokumente
JOVENAL T. FERNANDO,
Plaintiff-Appellee,
Civil Case No. M-MNL-18-06582-SC
For: Unlawful Detainer
-versus-
CARMELITA P. ANDREWS
Defendant-Appellant.
COUNTER MEMORANDUM
1
See Annex “B” of the Complaint.
2
See Annex “C” of the Complaint.
3
See Annex “D” of the Complaint.
1
4. Plaintiff-Appellee, as the registered owner and possessor of the
property, leased some portions of the property to third persons who occupied
the rooms of the property as bed spacers and boarders.
6. Considering the years that the Parties spent with each other and
because Plaintiff-Appellee was already residing in the United States of
America during the time of occupation, Plaintiff-Appellee tolerated the
occupation of Defendant-Appellant at the subject property.
10. Due to the failure of the personal service of the Formal Demand
to Vacate, Plaintiff-Appellee, through counsel, sent the Formal Demand to
Vacate to Defendant-Appellant through registered mail, as evidenced by
Registry Receipt No. RD 790 225 573 ZZ, posted on 20 December 2017, at
Parañaque City Hall.6
4
See Annex “E” of the Complaint.
5
See Annex “F” of the Complaint.
6
See Annex “G” of the Complaint.
7
See Annex “H” of the Complaint.
2
Defendant-Appellant to vacate the said property within fifteen (15) days
from receipt thereof. However, no one was present at the subject property to
personally receive the same during the time the demand letter was served, as
evidenced by the statement of Mr. Niño De Guzman, dated 21 December
2017, messenger of the undersigned counsel.8
12. Due to the failure of the personal service of the Formal Demand
to Vacate, Plaintiff-Appellee, through counsel, sent the Formal and Final
Demand to Vacate to Defendant-Appellant through registered mail, as
evidenced by Registry Receipt No. 087255, posted on 21 December 2017, at
the Makati Post Office.9
SO ORDERED.”
8
See Annex “I” of the Complaint.
9
See Annex “J” of the Complaint.
3
16. On 16 October 2018, Defendant-Appellant filed a Notice of
Appeal. Thereafter, Defendant-Appellant filed her Memorandum dated 23
November 2018. Thus, this Counter Memorandum.
II
COUNTER-ARGUMENTS
4
THERE WAS A DEMAND TO VACATE FROM THE
PLAINTIFF-APPELLEE.
CONTRARY TO DEFENDANT-APPELLANT’S
MISTAKEN AND MISGUIDED CLAIMS, THE FILING OF
A SUPERSEDEAS BOND AND THE OBLIGATION TO
DEPOSIT MONTHL RENTALS ARE NOT REQUISITES
FOR THE PERFECTION OF THE APPEAL BUT ARE
NECESSARY IN ORDER TO STAY THE EXECUTION OF
JUDGMENT IN EJECTMENT PROCEEDINGS WHICH
ARE IMMEDIATELY EXECUTORY IN NATURE.
III
DISCUSSION
5
a. Initially, possession of the property by the defendant was by
contract with or by tolerance of the plaintiff;
b. Eventually, such possession became illegal upon notice by the
plaintiff to the defendant of the termination of the latter's right
of possession;
c. Thereafter, the defendant remained in possession of the
property, and deprived the plaintiff of the enjoyment thereof;
and
d. Within one (1) year from the last demand on defendant to vacate
the property, the plaintiff instituted the complaint for
ejectment.”
20. In the instant case, there is no question that the Complaint filed
by Plaintiff-Appellee adequately and sufficiently alleged a cause of action
for unlawful detainer. The pertinent portion of the Complaint reads as
follows:
“x x x
6. Considering the years that the Parties spent with each other and because
Plaintiff-Appellee was already residing in the United States of America
during the time of occupation, Plaintiff-Appellee tolerated the occupation of
Defendant-Appellant at the subject property.
10. Due to the failure of the personal service of the Formal Demand to Vacate,
Plaintiff-Appellee, through counsel, sent the Formal Demand to Vacate to
Defendant-Appellant through registered mail, as evidenced by Registry
6
Receipt No. RD 790 225 573 ZZ, posted on 20 December 2017, at Parañaque
City Hall.
12. Due to the failure of the personal service of the Formal Demand to Vacate,
Plaintiff-Appellee, through counsel, sent the Formal and Final Demand to
Vacate to Defendant-Appellant through registered mail, as evidenced by
Registry Receipt No. 087255, posted on 21 December 2017, at the Makati
Post Office.
x x x”
24. In the case of Sps. Dela Cruz v. Sps. Capco,12 the Supreme Court
citing the case of Delos Reyes v. Odones,13 once again explained that:
12
G.R. No. 176055, March 17, 2014.
13
G.R. No. 178096, March 23, 2011.
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defendants applies only when the issue is the timeliness of the
filing of the complaint before the MTC x x x.
25. Here, the timeliness of the filing of the Complaint for unlawful
detainer is not an issue and thus the Complaint sufficiently established a case
for unlawful detainer as to vest the Metropolitan Trial Court of Manila,
Branch 26, with jurisdiction taking into consideration the facts alleged and
stated in the Complaint.
8
was even constrained to secure the services of a legal counsel to help him
facilitate the sending of formal demands to vacate to Defendant-Appellant.
Thus, it is absurd for Defendant-Appellant to claim that Plaintiff-Appellee
has only decided to terminate his tolerance to Defendant-Appellant’s
possession over the subject property and that that Plaintiff-Appellee has not
formally terminated Defendant-Appellant’s right of possession.
9
35. In view of the foregoing, the Honorable Metropolitan Trial Court
of Manila, Branch 26 clearly and evidently had jurisdiction overt he subject
matter of the instant case considering that the Complaint sufficiently and
adequately alleged a cause of action for unlawful detainer.
39. In the instant case, the parties are former spouses whose marriage
was dissolved and terminated by reason of a valid Final Decree of Divorce,
dated 12 September 1986, issued by the Second Judicial District Court of the
16
Article 150 of the Family Code of the Philippines.
10
State of Nevada long before the instant case was instituted. In the said
Judgment and Final Decree of Divorce, it was clearly order, adjudged and
decreed that the Plaintiff-Appellee be, granted an absolute and Final Decree
of Divorce from Defendant-Appellant, and forever dissolving the bonds of
matrimony existing between the Plaintiff-Appellee and Defendant-
Appellant and restoring them, and each of them, to the status of single,
unmarried persons.
11
proprio or on motion of Plaintiff-Appellee. In relation thereto, Sections 5
and 6 of the Rules on Summary Procedure provides:
17
Supra.
12
48. It must be emphasized that the instant case was decided and
judgment was rendered by the Honorable Metropolitan Trial Court as may
be warranted by the facts alleged in the complaint. Because of Defendant-
Appellant’s failure to file an answer, the court was only tasked to determine
whether the complaint of Plaintiff-Appellee alleged a sufficient cause of
action and to render judgment thereon which the court judiciously found
when it ruled in favor of the Plaintiff-Appellee,
49. There was no need nor was there an opportunity to prove the
validity and authenticity of the foreign judgment of divorce because of
Defendant-Appellant’s own failure to file their answer and simply because
the allegations in the Complaint constituted a sufficient cause of action for
unlawful detainer.
50. In a long line of cases, the Supreme Court has consistently ruled
that it is only when “the allegations in the complaint are insufficient to form
a cause of action shall the attachment become material in the determination
thereof. In fact, even under Section 4 of the Rules of Summary Procedure, it
is not mandatory to attach annexes to the complaint.”18
51. This was again pronounced by the Supreme Court in the case of
Lazaro v. Brewmaster19 wherein a judgment was also rendered based on the
complaint due to the failure of the defendant to file an answer as provided
for under the Rules of Summary Procedure. Thus:
52. In the case at bar, there was no need to prove the authenticity of
the documents being contested by Defendant-Appellant nor was there a need
to inquire into the veracity of the material allegations in the complaint. The
allegations in the complaint are sufficient to form a cause of action for
unlawful detainer thus, the attachments in the complaint are immaterial in
the determination of the rights of the parties.
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termination of Defendant-Appellant’s possession. Defendant-Appellant
remained in possession of the property after failing to heed Plaintiff-
Appellee’s verbal and formal requests. The Complaint was seasonably filed
within the one-year period prescribed by law. With all the elements present,
there was clearly a cause of action in the complaint for unlawful detainer.
CONTRARY TO DEFENDANT-APPELLANT’S
MISTAKEN AND MISGUIDED CLAIMS, THE FILING OF
A SUPERSEDEAS BOND AND THE OBLIGATION TO
DEPOSIT MONTHL RENTALS ARE NOT REQUISITES
FOR THE PERFECTION OF THE APPEAL BUT ARE
NECESSARY IN ORDER TO STAY THE EXECUTION OF
JUDGMENT IN EJECTMENT PROCEEDINGS WHICH
ARE IMMEDIATELY EXECUTORY IN NATURE.
61. Moreover, in the case of Acbang v. Hon. Jimmy H.F. Luczon, JR.
et. Al.22, the Supreme Court had expressly stated that the supersedeas bond
20
A copy of the Motion for Issuance of Writ of Execution Pending Appeal, dated 07 November 2018,
is attached hereto as Annex “A”.
21
G.R. No. 113886, February 24, 1998.
22
G.R. No. 164246, January 15, 2014.
15
should be filed within the period to perfect the appeal in order to stay the
execution of the judgment, to wit:
64. First, the Notice of Appeal absolutely failed to adduce any proof
of Defendant-Appellant’s compliance with the requisites to stay the appeal;
specifically the requirement to file the requisite supersedeas bond and
23
A.M. No. P-12-3069, [January 20, 2014], 725 PHIL 1-19.
16
deposit the monthly rental stated in the Decision. Second, a verification with
this Honorable Court confirmed such failure of the Defendant-Appellant to
file a supersedeas bond and deposit monthly rentals.
PRAYER
Other reliefs just and equitable under the circumstances are likewise
prayed for.
By:
NINEL RUBIO G. TAYAG
PTR No. 5680192/ 17 Jan. 2018/ Quezon City
IBP No. 029823/ 26 Jan. 2018/ Makati City
MCLE Compliance No. V-0017154/21 March 2016
Roll of Attorney’s No. 51045
JUSTIN B. LOREDO
PTR No. 11592216/ 13 Aug. 2018/ Las Piñas City
IBP No. 042641/ 18 May 2018/PPLM
17
Roll of Attorney’s No. 71076
Copy furnished:
CARMELITA P. ANDREWS
Defendant-Appellant
1817B, San Pascual, Malate,
Manila City
JUSTIN B. LOREDO
Admitted to the Philippine Bar this 2018, MCLE compliance not yet required pursuant to Sec. 3 (b),
Rule 3, Bar Matter No. 850 and MCLE Governing Board Order No. 1, s. 2008.
18