REPUBLIC OF THE PHILIPPINES METROPOLITAN TRIAL COURT NATIONAL CAPITAL JUDICIAL REGION BRANCH 64, MAKATI CITY

BANK OF THE PHILIPPINE ISLANDS, Plaintiff, - versus CIVIL CASE NO. 96361 For: Sum of Money

SPS. ROSARIO O. HERMOSO and MARIANITO DELA ROSA HERMOSO, Defendants. x----------------------------------------------------------------------------------------------------------------------------x

MOTION FOR RECONSIDERATION Defendants, by counsel, to this Honorable Court, respectfully move to a reconsideration of the Order of the Court denying the motion to dismiss, a copy thereof was received by the office of the undersigned counsel on April 21, 2009, on the following grounds: I THE COMPLAINT IS A MERE SCRAP OF PAPER AS IT FAILED TO COMPLY WITH THE REQUIREMENTS OF SECTION 5, RULE 7 OF THE 1997 RULES OF CIVIL PROCEDURE ANENT CERTIFICATION OF NON-FORUM SHOPPING. II THE BOARD OF DIRECTORS OF THE PLAINTIFF CORPORATION HAS NOT AUTHORIZED THE FILING OF THIS COMPLAINT; AND THAT MELISSA B. VELASCO, THE PERSON WHO SIGNED AND VERIFIED THE DEFECTIVE COMPLAINT, HAS NO AUTHORITY FROM THE BOARD OF DIRECTORS OF BPI TO FILE THE COMPLAINT. III THERE IS NO PRIVITY OF CONTRACT BETWEEN MARIANITO DELA ROSA HERMOSO AND BPI; AND THAT THE COMPLAINT STATES NO CAUSE OF ACTION AS AGAINST SAID DEFENDANT.

DISCUSSION/ARGUMENTS We respectfully urged the court to take a second hard look at the grounds of the Motion to Dismiss which are anchored on recognized and settled jurisprudence. There are matters that may have been overlooked, and when revisited and considered, shall merit a reconsideration of the Order that denied the motion to dismiss. 1

I. As to the first ground The requirements of Section 5, Rule 7 of the 1997 Rules of Civil Procedure, are quite simple, and one wonders why the plaintiff could not truthfully assert the same, thus: (a) that he has not therefore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the prescribed status thereof; (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. The requirements in paragraphs (a) and (b) in Section 5, Rule 7 of the 1997 Rules of Civil Procedure are written in the Complaint in all material respect. We adjure the court to rule on this issue. Thus, the certification of non-forum shopping in question omitted paragraphs (a) and (b) above, revealing its insufficiency and emptiness, to wit: There is no case filed or pending in the Supreme Court, Court of Appeals or other tribunal where similar issue of collection of obligation is filed. There is no allegation to the effect that there is no pendency of an action involving the same parties for the same cause; and it also lacks requisites 3 and 4 of litis pendencia. Thus, revisiting the elements of litis pendencia, to wit: (1) The same parties, or at least such as represent the same interest; (2) The same rights asserted, and the same relief prayed for; (3) The relief must be founded on the same facts, and the title or essential basis of the relief sought must be the same; (4) The identity in these particulars should be such that if the pending case had already been disposed of, it could be pleaded in bar as a former adjudication of the same matter between the same parties. (Feria: Civil Procedure Annotated, Volume 1, 2001 Edition, pp. 426, 427) In whatever context the quoted declaration was written, it did not mean anything insofar as the requirements of the Rules of Civil Procedure are concerned. Verily, the complaint should be treated as a mere scrap of paper perforce its dismissal is proper in accordance with Section 5, Rule 7 of the 1997 Rules of Civil Procedure, which read in part, thus: 2

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing.

II. As to the second ground The filing of this Complaint did not conform to Section 23 of the Corporation Code, thus: It is well established in corporation law that the corporation can act only through its board of directors in the case of stock corporation, or board of trustees in the case of non-stock corporations. Section 23 provides that unless otherwise provided in this Code, the corporate powers of all corporations formed under this Code shall be exercised, all business conducted and all property of such corporations controlled and held by the board of directors or trustees. The board of directors or trustees, therefore, is the governing body of the corporation chosen by the stockholders or members. The general rule is that in the absence of authority from the board of directors or trustees, no person, not even its officers, can validly bind a corporation. (De Leon, The Corporation Code of the Philippines Annotated, 2002 Edition, p. 217; Underscoring supplied) Indeed, the Secretarys Certificate appended to the complaint does not refer to this particular case, and cannot in any stretch of imagination bind the suing Corporation sans the imprimatur of the Board of Directors of plaintiff corporation. Again, a reading of the Secretarys Certificate attached as Annex A to the complaint reveals that Melissa B. Velasco who verified the complaint appears to have been authorized by the Executive Committee (ExCom), not the Board of Directors, to represent BPI in all credit card-related and litigation matters. There is no showing that Melissa B. Velasco has been authorized by the Board of Directors of BPI to file the instant Complaint; there is also no showing that the Board of Directors of BPI has authorized her to execute and sign the certification of non-forum shopping. This case should be dismissed outright for non-compliance with Section 5, Rule 7 of the 1997 Rules of Civil Procedure.

III. As to the third ground The complaint states no cause of action against the defendant Marianito Dela Rosa Hermoso, and the case should likewise be dismissed as against him on this additional ground.

Admittedly, there is no contractual relationship between said defendant and BPI, and no contract has been breached that would have otherwise given rise to a right of action against the former. Plaintiffs citation of Section 4, Rule 3 of the Rules of Civil Procedure is of no moment and has no relevant application to the instant case. Plaintiff should have considered Article 145 of the Family Code before impleading Marianito Dela Rosa Hermoso as party defendant in the case at bar. Obviously, the act of the plaintiff in unjustly dragging Marianito Dela Rosa Hermoso to this baseless suit is an actionable wrong.

PRAYER WHEREFORE, it is prayed that the ORDER dated March 26, 2009, denying the Motion to Dismiss, be reconsidered and set aside; and that a resolution issue dismissing the complaint for utter violation of Section 5, Rule 7 of the 1997 Rules of Civil Procedure; and for failure to state a cause of action. Defendants further pray for such other relief and remedies as may be just and equitable under the premises. Pasig for Makati City, April 24, 2009.

BELTRAN REYES-BELTRAN & BELTRAN Counsel for Defendant Unit 1631, City & Land Mega Plaza ADB Avenue corner Garnet Road Ortigas Center, Pasig City 1605 By: ROLAND B. BELTRAN IBP No. 780832; 2-10-09; Bukidnon PTR No. 5213985; 2-10-09; Pasig, M.M. Roll 36440; Page No. 288; Book No. XV MCLE Comp II No. 0012944

NOTICE OF HEARING

The Clerk of Court Metropolitan Trial Court Branch 64, Makati City Atty. Nelson Y. Ng NG and Associates Counsel for Plaintiff Rm. 1109 Cityland 10, Tower I H.V. dela Costa Street Salcedo Village, Makati City Greetings: Please take notice that the undersigned counsel will submit the foregoing motion to dismiss on May 08, 2009 at 1:30 p.m., for the consideration and approval by the Honorable Court.

ROLAND B. BELTRAN Cc., by registered mail with return card due to distance, lack of messengerial personnel, and for lack of material time:

Atty. Nelson Y. Ng NG and Associates Counsel for Plaintiff Rm. 1109 Cityland 10, Tower I H.V. dela Costa Street Salcedo Village, Makati City

Registry Receipt No. __________ Date of Mailing _______________ Postal Office _________________