Erroneous Order of Default by RTC

Erroneous Orders of Default by RTC


In another work for justice, I am filing a petition for certiorari before the Court of Appeals-Manila in order to challenged the two orders of RTC of Naic, Cavite, Branch 15, Presiding Judge Lerio Castigador declaring Spouses Adolfo Avenido and Nenita Avenido as in default in a complaint for the declaration of their certificate of title over the lot in Mendez, Cavite.

And with the overriding consideration of contributing to the the learning of law for the laymen, I am posting here a copy of the Petition for Certiorari I wrote.

The same is long and it is posted below:


xxxxxxxxxxxxxxxxxxxxxxxxxxxx


Republic of the Philippines
Court Appeals
Manila



SPS. ADOLFO S. AVENIDO
and NENITA S. AVENIDO,
Defendants-Petitioners,


-versus-                                             CA-G.R. No. _____________


FRANCISCO M. ERNACIO
and JUDGE LERIO C. CASTIGADOR,
REGIONAL TRIAL COURT OF CAVITE,
BRANCH 15,
Plaintiff-Respondents,
x-------------------------------------------------x



Petition on Certiorari



The defendants-petitioners, by the undersigned counsel, respectfully file this Petition for Review on Certiorari.


This petition is filed under Section 4, Rule 65 of the Rules for Court, which reads:


Section 4. When and where petition filed. — The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion.



The Order of the Court a quo denying the Motion for Reconsideration was received on October 16, 2015. Counting sixty (60) days from thereon is December 15, 2015. Hence, the filing of this petition today, 3 November 2015, is timely.


The original copy of the Order dated September 21, 2015 is attached hereto as ANNEX “A” series.



The Parties



The private defendants-petitioners are Spouses Adolfo S. Avenido and Nenita S. Avenido, both of legal age, with postal address at St. Monique Street, Barangay Tambo Malaki, Indang, Cavite.    But for the purpose of this petition, they can be served with notices and other legal processes at their counsel’s address written below.


The private plaintiff-respondent is Francisco M. Ernacio, of legal age, with postal address at 85 Llamado St., Barangay Asis II, Mendez, Cavite, where he can be served with notices and other legal processes.  He may be served with the processes of this petition through his counsel, Atty. Larliza B. Pulido-Nubla, at No. 122 (Formerly No. 503), De Ocampo St., Indang, Cavite.


The public respondent is Honorable Judge Lerio C. Castigador, the Presiding Judge of Regional Trial Court, Branch 15, Naic, Cavite.



The Antecedents



1.                 On October 18, 2013, a Complaint for Reconveyance of Real Property with Damages was filed by plaintiff Francisco M. Ernacio against Sps. Adolfo S. Avenido and Nenita S. Avenido, and the Registry of Deeds of the City of Tagaytay.


2.                 A copy of the same complaint for reconveyance and its annexes are attached to this petition as ANNEX “B” seriesThe undersigned counsel undertakes to request certified true copies from the RTC office in Naic, Cavite and when secured it will be submitted as soon as possible.


3.                 In said complaint, the private plaintiff-respondent claimed the following:

a)                 He said he is the owner and actual possessor of a parcel of land described as Cadastral Lot No. 6006 part, Cadastral 469-D situated in Barangay Asis I, Mendez, Cavite, declared for real property tax purposes under Tax Declaration No. 14-0012-00097, series of 2011, which was attached thereto;


(Upon reading the Tax Declaration No. 14-0012-00097, series of 2011, it was discovered that the property claimed by the plaintiff-respondent was described as Cadastral Lot No. 6006 part, Cadastral 469-D, classified as residential with an area of 792 square meters, and the said Tax Declaration No. 14-0012-00097, series of 2011, did cancel Tax Declaration No. 14-012-00819)


b)                He said he bought said parcel of land on August 23, 1982 from Jimena Alegre as proved by a copy of Deed of Absolute Sale dated August 23, 1982, and he openly, continuously, exclusively and notoriously possessed said parcel of land for more than thirty (30) years;


(The reading of the Absolute Deed of Sale revealed that the subject real property located at Asis, Mendez, Cavite, were 500 square meters residential land area, and 292 square meters interior residential, or a total land area of 792 square meters, under Tax Declaration No. 6166)


c)                 Sometime in June 2008, the plaintiff-respondent said he gave permission to private defendants-petitioners to survey Lot. No. 6006, Cad 469-D situated in Barangay Asis, Mendez, Cavite, for being adjoining owners of the southern portion of his property;


d)                Ernacio said that the survey conducted by the defendants-petitioners revealed that his real property has an actual area of 1,124 square meters denominated in proposed plan as Lot No. 6006-B, and the real property of defendants-petitioners denominated in proposed plan as Lot No. 6006-A has actual land area of 2,868 square meters;


(There were no proofs offered to prove the alleged proposed plans – Lot No. 6006-B and Lot No. 6006-A)


e)                 However, the plaintiff-respondent said he discovered that the supposed survey that he consented to was never pursued;


(It is improbable to conclude the alleged conducted survey that plaintiff-respondent has real property with an actual area of 1,124 square meters denominated in proposed plan as Lot No. 6006-B, and the real property of defendants-petitioners denominated in proposed plan as Lot No. 6006-A has actual land area of 2,868 square meters, when said survey was not allegedly pursued by the defendants-petitioners)


f)                  However, Ernacio said he discovered sometime in January 2012 that private defendants-petitioners have applied for the issuance of free patent over the entire Lot No. 6006 which allegedly included his real property;


(The reading of the defendants-petitioners’ free patent application dated December 12, 2009 revealed that they applied for Lot No. 6006, Survey No. Cad. 469-D, with an area of 3,992 square meters)


g)                 Ernacio said that on June 12, 2012, the plaintiff-respondent executed an Affidavit of Adverse Claim to get back what he allegedly rightfully owned.


h)                He said that the defendants-petitioners were issued Free Patent No. 042114-10-12588 under Original Certificate of Title No. OP-6661 which was registered on February 11, 2010 in the Registry of Deeds of Tagaytay City;


i)                   He alleged that Free Patent No. 042114-10-12588 issued in the name of Nenita S. Avenido married to Adolfo S. Avenido under Original Certificate of Title No. OP-6661 was not properly issued because his alleged parcel of land covered by Tax Declaration No. 14-0012-00097, series of 2011, was wrongfully included;


j)                   Ernacio also said he started paying the real property tax for his property in Barangay Asis, Mendez, Cavite in 1984 when the property was allegedly declared in his name under Tax Declaration No. 6969, series of 1984;


k)                 On July 9, 2012, Ernacio filed a formal complaint/protest with the DENR, Trece Martirez, Cavite, and he said it was found meritorious;


l)                   In August 2012 and September 2012, the issues between the parties were discussed in Barangay Asis, Mendez, Cavite, but the amicable settlement failed;


m)              The plaintiff-respondent said he demanded from the defendants-petitioners to execute a waiver in his favor, but it was refused; and


n)                The plaintiff-respondent said he now seeks reconveyance of the 1,205 square meters portion of Cadastral Lot No. 6006-cad 469-D covered by Tax Declaration No. 14-0012-00097.


4.                 On April 8, 2014, Ernacio filed a Motion for Leave of Court to Serve Summons by Publication, claiming the following:


a)                 He filed a Complaint on October 17, 2013;


b)                On January 23, 2014, the process server of the Honorable Court a quo had served summons to defendants-petitioners Sps. Adolfo and Nenita Avenido in Tambo Malaki, Indang, Cavite; and


c)                 The summons was not received because the defendants-petitioners were no longer residing in said address, and their exact address was unknown.
 

5.                 A copy of the Motion for Leave of Court to Serve Summons by Publication is attached hereto as ANNEX “C” series. The undersigned counsel undertakes to request certified true copies from the RTC office in Naic, Cavite and when secured it will be submitted as soon as possible.


6.                 On April 11, 2014, the court a quo issued an Order submitting for resolution the Motion for Leave of Court to Serve Summons by Publication.  A copy of the April 11, 2014 Order is attached hereto as ANNEX “D.”  The undersigned counsel undertakes to request certified true copies from the RTC office in Naic, Cavite and when secured it will be submitted as soon as possible.


7.                 On May 2, 2014, the Honorable Court a quo issued an Order granting the Motion for Leave of Court to Serve Summons by Publication. A Copy of which is attached hereto as ANNEX “E.”  The undersigned counsel undertakes to request certified true copies from the RTC office in Naic, Cavite and when secured it will be submitted as soon as possible.


8.                 On April 19, 2014, the plaintiff-respondent filed a Motion to Declare Defendants in Default, claiming the following:


a)                 On July 4, 2014, his summons and complaint were published in People’s Journal Tonight Volume XXXIV, No. 239, page 13-a attaching therewith copies and Affidavit of Publication. The copies of the July 4, 2014 People’s Journal Tonight Volume XXXIV, No. 239, page 13-a, and of the Affidavit of Publication were attached to the motion.


b)                Ernacio filed Motion to Declare Defendants in Default upon his verification that the defendants-petitioners failed to file their answers despite summons and complaint by publication.    


9.                 A copy of the Motion to Declare Defendants in Default is attached to this petition as ANNEX “F” series.


10.             On August 22, 2014, upon submission by the plaintiff-respondent of an Affidavit of Service of his counsel, Attorney Larliza B. Pulido-Nubla, claiming that copies of the Motion to Declare Defendants in Default were sent by registered mails, the Honorable Court a quo issued an Order on the same date that in the lapse of fifteen (15) days from receipt thereof, the instant motion will be deemed submitted for resolution with or without the respective pleading from the defendants.


11.             The Certified True Copies of the Affidavit of Service and of the Order both dated August 22, 2014 are attached hereto as ANNEX “G” and ANNEX “H”, respectively.


12.             On September 8, 2014, the Philippine Postal Corporation-Mega Manila Area issued a Certification that because there was no one to receive the mail at the address of Sps. Adolfo S. Avenido and Nenita S. Avenido in Tambo Malaki, Indang, Cavite, the mail was considered “RETURNED IT TO SENDER” on September 3, 2014; A Certified True Copy of the Certification is attached hereto as ANNEX “I.”


13.             On September 23, 2014, the private defendants-petitioners filed a Motion for Leave of Court for Admission of Answer with Affirmative Defenses and Counterclaims, where they claimed the following:


a)                 The motion was filed in the interest of justice, fairness and due process;


b)                The private defendants-petitioners had not known about the instant case since its inception by the plaintiff, and in fact, upon learning it from a friend, they immediately trooped to the Court even on a flooding day on 19 September 2014;


c)                 The private defendants-petitioners arrived about 7:00 in the morning at the Court a quo and they were entertained by a court staffer who then gave them a set of photocopies of the case records;


d)                In the instant case, neither the court a quo nor the plaintiff invoked service by substituted service considering that the defendants had long moved out of the address used by the plaintiff;


e)                 Instead, the plaintiff applied for an allowance to serve the summons by publication and this was done;


f)                  However, the fact remains that there is no proof that the private defendants-petitioners here read the published summons as the spouses defendants honestly declare that they were not able to read the same publication, considering that the newspaper used was not circulated in the place where the spouses have been living;


g)                 And it is a doctrine that presumptions of service stand until a person against whom receipt of notice is imputed denies having received such notice, and in case of the denial the burden of proof shifts to the one claiming benefit from the receipt to prove that indeed that person received the notice;


h)                With more reason that the burden of proof is required when the contents of the notice is a summons in a civil case.   This is so because summons has prejudicial effect on the person against whom the notice is being claimed to have been served.   That prejudice comes by way of binding the defendant to the decision of a court;


i)                   Because the spouses defendants are standing pat that private defendants-petitioners had never read the published summons, the burden of proof lies on the shoulders of the plaintiff to prove that the defendants indeed read the published summons;


j)                   Because the private defendants-petitioners stand firm that the plaintiff cannot prove that the spouses were able to read the published summons, it stands to reason firmly that private defendants-petitioners have not yet been served with any summons for this case;


k)                 Further, the demand of due process by the Constitution cannot be neglected;


l)                   Under this timeless doctrine of a civilized society, no person can be deprived of life, liberty or property without due process of law.  Due process refers to the notice to be heard and the explanation after notice;


m)              In this case, the Constitutional command cannot be complied with if the Court would declare the defendants in default just because of a publication;


n)                Anyway, the Court is authorized by the Rules of Court to admit belated answers under Section 11 of Rule 11, with states:


Section 11.       Extension of time to plead. — Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules.

The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules. (7)


o)                In this case, the demand of justice compels the allowance of the instant answer belatedly filed if it were to reckon from the date of publication of summons;


p)                After all, what is involved in this case is a Torrens certificate of title that is clothed by law as indefeasible and imprescriptible;


q)                If the Torrens certificate of title in the parcel of land involved in this case is titled in the names of Spouses Avenido, with more reason that they must be impleaded being a compulsory party;


r)                  So that with this reality, it becomes more compelling for the Court to allow the Answer of the defendants;


s)                  In another view, the instant case is actual quasi-in-rem.  It means that it is an action seeking to bind the whole world and at the same time bind the particular persons in the person of the defendants;


t)                  The publication can affect only the rest of the world and it cannot affect the persons of the defendants;


u)                So that it behoves the Court to allow the instant answer and reject the motion to declare Spouses Avenido in default.


v)                 The private defendants-petitioners have certificate of title, Original Certificate of Title No. OP-6661, and it is indefeasible and imprescriptible in addition to the fact that the plaintiff has been occupying a parcel of land identified as Lot 6007 of Cad 469-D Mendez Cadastre while the parcel of land embraced by OCT No. OP-6661 is Lot No. 6006 of the same cadastre;


A Certified True Copy of the Original Certificate of Title No. OP-6661 is attached hereto as ANNEX “J.”


w)               The private defendants-petitioners admit with qualification that they asked for permission from the plaintiff for the survey of the parcel of land being applied for patent by the defendants was only due to the fact that the defendants were respectful, wanting to avoid trouble with adjoining owners, and this act did not mean a surrender by the defendants to any claims there may have been;


x)                 The defendants applied for patent for their own parcel of land over the entire Lot No. 6006 but admit to the allegation that they were issued free patent N. 042114-10-12588 under OCT No. OP-6661 that was originally registered in the Registry of Deeds of Tagaytay City;


y)                 The defendants-petitioners admitted with a qualification that the reason why the defendants did not agree to execute a waiver because the plaintiff has never presented any evidence that he owned any part of the parcel of land that is titled to the defendants’ names;


z)                  The plaintiff slept for too long on his claimed rights; He claimed he acquired possession over the alleged land holding since 1982; 


aa)             Until 2010 when the certificate of title of the defendants were awarded them, the plaintiff did not act, warranting the defendants to believe in his acts that he has no whatever ownership claim to any part of their parcel of land covered by OCT No. OP-6661;


bb)           The cadastral survey was conducted only later yet his name was not reflected in any part of Lot No. 6006 of Cad 469-D Mendez Cadastre;  This means that he did not register his right of possession or ownership when the government conducted the said public survey;


cc)             It is taken of judicial notice that in cadastral survey, all possessors and claimants are interviewed by surveyors in order to have their names listed in the lands they occupy at the time of the cadastral survey;


dd)           So that the absence of the plaintiff’s name in the records of the Cadastral Survey for Lot No. 6006 is at least a piece of evidence that he never intended to own whatever part of Lot No. 6006;


ee)            Stated otherwise, if indeed he has been the actual possessor of the alleged lands falling within Lot No. 6006 and he indeed registered his name before the surveyors, the claimed part of Lot No. 6006 should have been designated a unique lot number; Since there is no unique Lot Number for the plaintiff within Lot No. 6006, it only means that he has had no legal claim of ownership over whatever portion of Lot No. 6006;


ff)               What is extant in the records of the Land Registration Authority (LRA) is that the plaintiff is the registered claimant for Lot No. 6007 that is adjacent to Lot No. 6006.


gg)             The plaintiff claimed that he acquired his rights from Alegre couple in 1982 and he claimed that it was from the Alegre spouses that he bought the same rights;


hh)           However, the plaintiff did not state in the complaint how the Alegre spouses acquired that supposed area of land;


ii)                 Moreover, the tax declaration of the Alegre spouses and that of the plaintiff do not specify or identify the exact location of the parcel of land that their Tax Declaration certificates refer to;


jj)                 And because the plaintiff now failed to establish the exact authoritative source of Alegre’s right and failed to establish also the exact metes and bounds of Alegre’s lot, the plaintiff has no right to speak of as a right of ownership in a part of Lot No. 6006;


kk)             And if he has no right to speak of, then there is no right to be respected by the defendants; and


ll)                 As such, it is very clear that there is no statement of the cause of action for reconveyance or damages;



14.             A Certified True Copy of the Motion for Leave of Court for Admission of Answer with Affirmative Defenses and Counterclaims is attached hereto as ANNEX “K” series.


15.             On October 20, 2014, the plaintiff-respondent filed his Comment to the Motion for Leave of Court for Admission of Answer with Affirmative Defenses and Counterclaims, claiming the following:


a)                 The Motion of the defendants-petitioners should be denied because they failed to sufficiently prove justifiable reason for their failure to file an answer within the time provided by the rules despite publication of summons in accordance with the Rules of Court;


b)                The defendants-petitioners were aware of the instant case but showed lack of interest because defendant-petitioner Adolfo Avenido visited plaintiff’s house in Mendez, Cavite sometime in year 2014 with intention to buy the subject property;


c)                 The defendants-petitioners were aware of the instant case because they have two (2) pending cases before the court a quo docketed as Civil Case No. NC-2011-2079 (as defendants) and Civil Case No. NC-2010-1999 (as plaintiffs);


d)                Substituted service of summons is no longer possible because there is no one to receive the summons in the given address – St. Monique Street, Barangay Tambo Malaki, Indang, Cavite – that also appeared in Civil Case No. NC-2010-1999 where spouses Avenido are the plaintiffs;


e)                 The rules do not require the plaintiff who caused the publication of summons to prove that the defendants-petitioners have in fact read the newspaper; and


f)                  The validity of service of summons by publication is established by the affidavit of publication of the publisher and affidavit of service. 


16.             An original copy of the Comment to the Motion for Leave of Court for Admission of Answer with Affirmative Defenses and Counterclaims is attached hereto as ANNEX “L” series.


17.             On October 24, 2014, the court a quo issued an Order submitting for resolution the Motion to Declare Defendants in Default by the plaintiff, and the Motion for Leave of Court for Admission of Answer with Affirmative Defenses and Counterclaims; A Certified True Copy of the Order is attached hereto as ANNEX “M.” 


18.             On November 7, 2014, the defendants-petitioners filed their Reply, contending the following:


a)                 First, the rule on summons is very firm and it cannot be set aside in order to vest in the Court that jurisdiction over the person of the defendants;


b)                Second, the duty to serve summons rests on the process server of the Court;


c)                 Third, the defendants have no obligation to know what civil cases are filed against them so that they cannot be held liable just because the defendants did not come to corridors of the court to watch every day for persons filing cases against them;


d)                There is nothing in the Rules of Court that compels defendants to verify whether there are other civil cases filed against them aside from the civil cases they may have been facing;


e)                 So that every time the defendants attend a hearing in their case in Court, they are not obliged to ask from the same court what other cases do they have;


f)                  To the contrary, it is on the shoulders of the plaintiffs that the obligation to inform the address of the defendants is resting, and if the address of the defendant that the plaintiff wrote in the complaint turned out to be no longer the address of the defendant, the plaintiff is still obliges to provide the process server with the correct address.


g)                 The plaintiff and his counsel alleged that in Civil Case No. NC-2010-1999, the defendants gave their address as St. Monique St., Brgy. Tambo Malaki, Indang, Cavite.  The plaintiff and his counsel also said that they inquired from this Court the new address of the defendants and they claimed the Court did not give such information.


h)                If they were so minded and diligent, all the plaintiff and his lawyer had to do is to verify from the Court the schedules of hearing of the defendants’ other cases with Court.   And if they would know, the plaintiff and his lawyer can ask the process server to serve the summons on the defendants when the defendants attended the hearings.  Because the plaintiff and his counsel did not do this, it is their fault;


i)                   Assuming that the plaintiff has any cause of action, it cannot be neglected that the Court needs to declare a certificate of title that is imprescriptible and indefeasible; 


j)                   The court needs to inquire into intrinsic facts and circumstances in order for it to be educated to determine whether there were void acts on the part of the defendant that can defeat their certificate of title.   And these void acts can never be discovered without knowing from the defendants how did they apply for the patent issued to them by the Department of Environment and Natural Resources (DENR).   It is a dictum of any case that the court must have sufficient facts to decide a case, otherwise the court has no jurisdiction to hear and decide a case without the presence of indispensable parties; and


k)                 The case involves allegations that are the bases for the prayer of declaration of nullity of a certificate of title.  The State has interest in the integrity of certificates of title.  That interest is so great that the Courts are required to make a decision with great caution.  And this caution cannot be served if the defendants who are proper parties are not allowed to ventilate their evidence in Court.


19.             A copy of the Reply is attached to this petition as ANNEX “N” and series.


20.             On February 9, 2015, the Honorable Court a quo issued an Order denying the Motion for Leave of Court for Admission of Answer with Affirmative Defenses and Counterclaims, and granting the Motion to Declare Defendants in Default.


21.             The said Order reads:


Under Rule 14, Section 14 of the rules of Court, the same provides that when the address of defendant is unknown and cannot be ascertained, the Court may grant service of summons by publication.   The Rule does state that summons must be published in a newspaper that the defendant is familiar of or defendant usually read.   Notice is given to the whole world.   Said procedure is sufficient notice since plaintiff cannot determine the whereabouts of accused thru diligent efforts.


“Rule 14, Section 14 of the Rules of Court Service upon defendant whose identity or whereabouts are unknown. -- In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order.”


The return of Service of Summons issued on March 20, 2014 by Process server Andy A. Llanera state that summons was not served personally to defendant spouses as they cannot be found in the given address and according to one Lejane Sanchez, defendant spouses are no longer residing in the said address as they are no living at Marikina City.   Thus, this certification is presumed valid without any clear proof to the contrary.


“The certificate of service of the process server of the court a quo is prima facie evidence of the facts as set out therein.   This is fortified by the presumption of the regularity of performance of official duty.  To overcome the presumption of regularity of official functions in favor of such sheriff’s return, the evidence against it must be clear and convincing.” Guanzon vs. Arradaza, 510 SCRA 309 

 
Hence, there being a valid service of summons by publication, the Court acquired jurisdiction over the defendants.   Plaintiff has also sent a copy of the summons with the petition to the last known address of defendants. Hence, procedurally speaking, plaintiffs have complied with the rules of court on proper service of summons.


WHEREFORE, based on the foregoing, the Motion for Leave of Court for Admission of Answer with Affirmative Defenses and Counterclaims is hereby DENIED for lack of merit. Motion to Declare Defendants in Default is hereby GRANTED. Plaintiff is directed to present evidence ex-parte before this Clerk of Court of this Court to present and mark additional evidences.


SO ORDERED.


22.             An original copy of the Order dated February 9, 2015 is attached hereto as ANNEX “O.” 


23.             On May 20, 2015, the defendants-petitioners filed their Motion for Reconsideration to the Order dated February 9, 2015, arguing the following:


a)                 The defendants cannot be declared in default and that their answer must be admitted BECAUSE THERE IS NO PROOF OF SERVICE OF SUMMONS BY PUBLICATION;


b)                Under Section 19 of Rule 14, proofs of service of summons must be established and these proofs required are the following:


(1)              AFFIDAVIT OF PUBLICATION -- to be executed by the printer, foreman, principal clerk, or of the editor, business or advertising manager;


(2)              COPY OF THE PUBLICATION – to be attached to the AFFIDAVIT OF PUBLICATION; and


(3)              AFFIDAVIT OF DEPOSIT OF COPY THE SUMMONS and ORDER FOR PUBLICATION.


c)                 The plaintiff managed to submit affidavit of publication attaching thereto a copy of the publication. BUT THE PLAINTIFF FAILED TO SUBMIT AFFIDAVIT OF DEPOSIT OF COPY OF THE SUMMONS and ORDER FOR PUBLICATION;


d)                What the plaintiff submitted was a CERTIFICATION THAT IS NOT REQUIRED BY THE RULES;


e)                 The same certification does not set forth the fact that a summons and a copy of the order for publication were deposited at the post office addressed to the last known address of the defendants; and


f)                  MOREOVER, it does not even state what were the contents of the letter of Atty. Pulido-Nubla under Registry Letter No. RD 030891703 ZZ.



24.             An original copy of the Motion for Reconsideration is attached hereto as ANNEX “P” series.


25.             On June 9, 2015, the plaintiff-respondent filed his Comment to the Motion for Reconsideration, alleging the following:


a)                 The validity of service of summons by publication is established by the affidavit of publication and affidavit of service of the motion to declare defendants in default;


b)                The purpose of the rules in requiring the submission of affidavit of deposit of copy of the summons and the order for publication was duly served in the case; and


c)                 Moreover, the postmaster cannot be reasonably expected to state in his certification the contents of registry letter no. RD 030891703 ZZ.


26.             An original of the Comment is attached hereto as ANNEX “Q” series.


27.             On September 21, 2015, the Honorable Court a quo issued an Order denying the Motion for Reconsideration; Hence, this Petition.



The Grounds



The Honorable Regional Trial Court committed grave abuse of discretion amounting to lack or excess of jurisdiction in declaring the defendants-petitioners in DEFAULT when there is no solid ground therefor and when there was utter lack of compliance to make service of summons by publication valid.


The Discussion



First grave abuse of discretion:
declaring petitioners in default
for lack of interest


The defendants-petitioners firmly stand by their assertion that they were not aware of the instant case when it was filed by the plaintiff-respondent to the Honorable Court a quo.


This is so because it is in the nature of man to defend his right when his real property that is the product of his honest hard labor in government service is under attack by any plaintiff who wants to be owner of a real property without dropping a sweat.


The real property concerned is of huge value that cannot just be ignored by any person.


So that, to say that the defendants-petitioners displayed the lack of interest as the reason for them in not minding the instant case is far beyond the habit of man. 


There is no sane man who will let go of his real property that will be for inheritance of his beloved children without fighting sweat and blood against plaintiff-respondent.


In fact, upon learning that their hard-earned real property was the subject of the instant case, the defendants-petitioners, without worry of being trapped in a stormy day of September 19, 2014, and when it was flooding in Metro Manila and nearby provinces, they travelled far to the Court a quo’s office to confirm for themselves whether, indeed, a case was filed by Francisco M. Ernancio against them.


In truth, the defendants-petitioners were very thankful to the Almighty that they were given a friend who informed them about the case filed by the plaintiff-respondent.


After securing the documents from the Court a quo, the defendants-petitioners, not minding all odds – darkness in the midst of Tropical Storm Mario that, as per record, left eighteen (18) persons dead and affected one million Filipinos, and had destroyed infrastructure and crops in the amount of PhP3,399,424,192.51 – travelled back to Manila to seek legal aid of their attorney.


If only, the Court a quo has considered the sacrifices of the defendants-petitioners in the midst of devastation by Tropical Storm Mario that forced Malacañang Palace to declare closure of all government offices in the afternoon of September 19, 2014 (Friday), it will rule the other way around, declaring spouses Adolfo Avenido and Nenita Avenido of having full interest in the instant case, but they were not properly served with summons.


The Court of Appeals can take judicial notice of the typhoon on 14 September 2014.


If the sacrifices of the defendants-petitioners were not enough to prove that they are humans who are willing to face danger in the midst of the roaring storm only to fight their ownership of the subject real property, then, the Court a quo might be wanting more than floods from Cavite to Metro Manila that was underwater.


Tropical Storm Mario only left the Philippines Area of Responsibility in the evening of September 22, 2014, a Monday.


In the soonest possible time following the stormy days, the defendants-petitioners filed their Motion for Leave of Court for Admission of Answer with Affirmative Defenses and Counterclaims on September 23, 2014.


In the said motion, defendants-petitioners Adolfo and Nenita Avenido made substantive allegations on how they learned of the case and secured a copy of the case.


The defendants-petitioners noted the publication of summons and the fact that the plaintiff filed a Motion to Declare the Defendants in Default.


Grave abuse of discretion: lack of
substituted service not observed


The defendants-petitioners argued against the motion to declare them in default, arguing that the service of summons by publication cannot be had if the process server had not exhausted service by personal service of summons and by substitution service of summons.


But for reason only known to process server Andy Llanera, he failed to serve the summons, or he was kept ignorant that there are two (2) other cases filed in the court a quo where  Spouses Avenido are also parties.


If Llanera, the court a quo and plaintiff-petitioner were honestly determined to inform the defendants-petitioners about the instant case, they should have had made them aware during the hearings in two (2) other cases – Civil Case No. NC-2011-2079 and Civil Case No. NC-2010-1999 where the defendants-spouses-petitioners have been attending.


Llanera as the process server and the court a quo cannot feign ignorance of the existence of the same civil cases and the dates of hearings set by the court itself.  If these hearing dates were faithfully observed by Llanera, he could have easily waited for Spouses Avenido to attend those hearings where he can now serve the summons by personal service.


But the truth is that they never bothered to inform the spouses during these hearings attended by Spouses Avenido in the same court for these two other cases that were ordered consolidated.   The records or minutes of the other cases will show they attended those hearings.


One thing more, being the process server of the court  a quo, Llanera knows that service of summons by publication must be avoided if necessary.  And because Llanera lacked the sense of becoming diligent and prudent in his work, he failed to serve the subpoena on Spouses Avenido in any of those hearings in other cases in the same court a quo.


Additionally, despite this failure to serve the summons on Spouses Avenido during hearings in other case, Llanera can still effectuate service of summons by substituted service.  But he did not attempt to do so.


In his returns, Llanera did not specify that he attempted to serve the summons by substituted service.


If there was anything why this lack of diligence existed, it is a proof that the plaintiff wanted to hide the instant case from the defendants-petitioners in order to ensure the plaintiff gets the benefit of prosecuting his case with the opponents in default.


Further, the plaintiff knew from the start that it was highly improbable for the plaintiffs-respondents to be able to read the published summons.


This is because the defendants-petitioners must be busy and had no time to read the papers daily as they have more to attend their business and the needs of their children.


Grave abuse of discretion:
Refusal to apply Section 11
of Rule 11 when it was applicable


To further their arguments, spouses Avenido invoked the provisions of the Rules of Court authorizing the Court a quo to allow belated answer as provided for under Section 11 of Rule 11, to wit:

Section 11. Extension of time to plead. — Upon motion and on such terms as may be just, the court may extend the time to plead provided in these Rules.
The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by these Rules.


There were many justifications that were cited by the defendants-petitioners and which could be used to justify a decision for the court to extend a time to plead.


First, the spouses invoked that because what was involved was a real property with a certificate of title that is imprescriptible, it was with more reason that this belated answer be allowed and admitted.


Additionally, assuming that the plaintiff had any cause of action, it cannot be neglected that the Court needs to declare a certificate of title that is imprescriptible and indefeasible. 


As such, the court needed to inquire into intrinsic facts and circumstances in order for it to be educated to determine whether there were void acts on the part of the defendant that can defeat their certificate of title.  


And these void acts can never be discovered without knowing from the defendants how did they apply for the patent issued to them by the Department of Environment and Natural Resources (DENR).  


It is a dictum of any case that that the court must have sufficient facts to decide a case, otherwise the court has no jurisdiction to hear and decide a case without the presence of indispensable parties.


Moreover, the case involved allegations that are the bases for the prayer of declaration of nullity of a certificate of title. 


The State has interest in the integrity of certificates of title.  That interest is so great that the courts are required to make a decision with great caution.  And this caution cannot be served if the defendants who are proper parties are not allowed to ventilate their evidence in court.


For the court a quo to consider the plaintiff-respondent without the participation of the defendants, it will continuously bind and blind itself far from truth that the documents used by the defendants were nothing and have no purpose to stand against the land title of the defendants-petitioners.


Second, there is wisdom for the court a quo to exercise its discretion to grant an extension of time to plead because of the circumstance that the petitioners-defendants had been attending hearings two cases in the court a quo and that is an indication that the petitioners-defendants cannot be said to be delinquent or disinterested to defend their titles to the same land.


The court a quo knew very well that these two cases involved the same lot that is the subject of the present case.


It must be taken of judicial notice that while the defendants-petitioners were attending their two other cases in this court a quo, it was impossible for them to know of this case and file their answer for this case unless the plaintiffs and the process server exerted efforts to inform the petitioners-defendants Spouses Avenido.


Anyway, the fact that there was no effort to inform Spouses Avenido, the court a quo, the plaintiff-respondent and his counsel, Attorney Larliza B. Pulido-Nubla must all be guilty of deliberate act of keeping from Spouses Avenido the present case so that the spouses will be declared in default.


And when the Spouses Avenido are kept in the dark, the plaintiff-respondent will be assured of victory.


So that it was grave abuse of discretion for the court a quo to justify the declaration of default by using the fact that the defendants-petitioners had other cases in this court a quo so that they should know of the instant case.


Truly, it was impossible for the defendants-petitioners to know the instant case when they were kept blinded by the court and by plaintiff-respondent during the hearings in two (2) other cases.


By these alone, the court a quo should have exercised its discretion of granting extension of time by means of allowing the belated answer to be admitted.


Third, it was very wrong for the court a quo to give credence to plaintiff-respondent’s argument that substituted service of summons could not be effective because there was no one to receive the service of summons.


That is because there is no proof submitted that indeed a substituted service of summons was tried but failed.

It was likely that the court a quo was biased for the plaintiff-respondent that there was no use for substituted service despite fact that it had not tried the same in informing the defendants-petitioners.


If the court a quo was true in not peeping behind the blinds of justice lady, it will not conclude the futility of the substituted service that was not effectuated in the instant case.


It is improbable for the court a quo to just accept the claims that all registered mails sent by the plaintiff to the defendants’ address in Indang, Cavite were all returned to sender.


This is so because it is in the nature of the bench to apply more wisdom in keeping the parties knowledgeable of the consequences if they fail to abide by the summons.


It was wrong for the court a quo to be convinced that it was compelling to report the service of summons by publications when substituted service was never been tried.


In truth, it is a practice by lawyers and courts to utilize the service of summons, notices and other legal processes by substituted service that is much cheaper than summons by publication.    


But for the court a quo to downgrade the efficiency of substituted service is much discouragement to legal practice.


Fourth, it was also unreasonable for the court a quo to believe in the representation of the plaintiff-respondent that because the Rules of Court does not require that the publication be read by the defendants-petitioners, the spouses Avenido are bound by the summons by publication.


With this reality that the service of summons by publication cannot be actually read, the court a quo should have been lenient and give humanity a face by exercising its discretion under Section 11 of Rule 11 to give extension of time to plead by admitting the belated Answer.


Grave abuse of discretion: not
complying with affidavit of service
of summons, order of publication


            The court a quo also committed grave abuse of discretion by ruling that the service of summons by publication was completed when there was no compliance with the requisite for the submission of the AFFIDAVIT OF DEPOSIT OF MAIL TO THE LAST KNOWN ADDRESS OF THE DEFENDANTS SUCH COPY OF THE SUMMONS AND ORDER OF PUBLICATION.


The defendants challenged the Order by way of a Motion for Reconsideration reasonably contending that there is no proof that the plaintiff complied with the service of summon b publication.


But the court a quo never reversed itself, thereby committing grave abuse of discretion.


The defendants argued that non-compliance with requisites under Section 19 Rule 14 will make the published summons null and void.


These requisites under Section 19 are the following:


(1)  Affidavit of publication;


(2)  Copy of the publication; and


(3)  Affidavit of deposit of copy of summons and order for publication.


The plaintiff failed to comply with the third requisite that he did not file an affidavit of deposit of a copy of summons and order for publication.


The certification issued by the post office is not a substantial compliance of the third requisite because nobody else could know what was inside the envelope but the one who deposited the mail.


            What the rule wants to establish is that the defendants were at least accorded with the minimum compliance with notice of the copy of summons and order of publication of summons.   The Certification cannot serve to comply this because the alleged certification did not state what were the contents of the registered mail with a unique number.


            Clearly, it was grave abuse of discretion for the court a quo to rule compliance when there was none.


Grave abuse of discretion:
not considering timely Answer


It turned out that even if the Certification were to be given weight as substantial compliance of the third requisite under Section 19 of Rule 14, still it can be considered that there was timely filing of the Answer.


This is because the date of 23 September 2014 was the date when the Motion for Leave to Admit Answer was filed and the Answer itself was incorporated in the same pleading.


Now, the Certification submitted by the plaintiff showed that it was issued by the Post Office on 8 September 2014.


Because the certification was to serve as the last compliance, then the reglementary period of 15 days to file answer can be reckoned from 8 September 2014.


And if we were to count from 8 September 2014, the fifteenth (15th) day falls on 23 September 2014.


Ergo, it can now be ruled that the Answer was filed timely and the defendants cannot be considered as in default.


And if the defendants can never be considered in default, then the court a quo committed grave abuse of discretion in declaration the defendants-petitioners in default.



The Prayer



WHEREFORE, it is respectfully prayed to the Honorable Court of Appeals to issue a decision declaring that the Regional Trial Court of Naic, Cavite, Branch 15, committed grave abuse of discretion in declaring the defendants-petitioners in DEFAULT.


It is also prayed that the instant case be returned to the Regional Trial Court, Branch 15, Naic, Cavite, ordering the court a quo to conduct a full blown trial.


Other reliefs just and equitable are also prayed for.   Manila, 3 November 2015, Manila.


Causing Sabarre Castro pELAGIO
Unit 1, No. 2368 J. B.  Roxas Street corner Leon Guinto Street, Malate, Manila

By:


BERTENI CATALUÑA CAUSING, CE
IBP No. 949537/ 06-01-2015 / Manila IV
PTR No. 3834103 / 06-01-2015 / Manila
Roll No. 60944/MCLE No. IV – 0007338 issued 10 August 2012


Cc:

JUDGE LERIO C. CASTIGADOR,
Regional Trial Court, Branch 15
Naic, Cavite


ATTY. LARLIZA B. PULIDO-NUBLA
Counsel for the plaintiff-respondent
No. 122 (Formerly No. 503)
De Ocampo St., Indang, Cavite


EXPLANATION


            Lack of personnel and distance compelled the service of copy of the petition on the RTC of Naic, Cavite, Branch 15 and on the counsel of the plaintiff-respondent.


BERTENI CATALUÑA CAUSING, CE



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