Republic of the Philippines

SUPREME COURT
MUNICIPAL TRIAL COURT OF MARILAO
Third Judicial Region
Province of Bulacan

GLOBAL ASIA FINANCE AND

LEASING CORPORATION,
Plaintiff,

Civil Case No. 1302

-versus- Unlawful Detainer

SPOUSES JULIETO AND SUSAN

AMADOR AND ALL PERSONS
CLAIMING RIGHTS UNDER THEM,
Defendants.
x-------------------------------------------x----

ANSWER
(WITH COUNTER-CLAIM)

Defendants Spouses Julieto and Susan Amador, by counsel unto this

Honorable Court, by way of special appearance without submitting to the

jurisdiction of this Court, most respectfully submits the foregoing Answer with

Counter-claim and in support thereto, alleges that:

1. The allegations in paragraph 1 of the Plaintiff’s Complaint that are

personal to the Plaintiff are specifically DENIED for lack of sufficient knowledge or

information to form a belief as to the truth or falsity thereof, while the allegations in

paragraph 2 insofar as they refer to the personal circumstances of SPS. JULIETO

and SUSAN AMADOR, are ADMITTED;

2. The allegations contained in paragraphs 3, 4, 5, 6, and 10 of the

same Complaint are likewise ADMITTED;

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3. The allegations contained in paragraphs 7, 8, 11 and 12 of the

Complaint are also specifically DENIED for the truth of the matter is hereby

alleged in the Special and Affirmative Defenses raised in the instant Answer;

4. The allegations contained in paragraph 7, with regard to

relinquishment of title over the subject lots by virtue of the alleged execution of the

Voluntary Surrender and Deeds of Absolute Sale, is also specifically denied for

being UNFOUNDED. The truth being that the Defendants did not voluntarily and

have no intention of relinquishing title over the above properties and that the due

execution of both the Voluntary Surrender and Deeds of Absolute Sale is

specifically denied being procured through evident fraud, machinations, and bad

faith.;

5. The allegations contained in paragraph 9 with respect to the demand

letter dated March 7, 2008 is also specifically DENIED for lack of knowledge or

information sufficient to form a belief as to the truth of the allegations.

SPECIAL AFFIRMATIVE DEFENSES

6. Answering Defendant hereby re-pleads and reproduces all the

material allegations contained in the preceding paragraphs, and in support thereof

most respectfully alleges that:

7. The Honorable Court has no jurisdiction over the subject matter of

the claim. Based on the allegations of the Complaint, Accion Publiciana is the

proper action in this case which falls within the jurisdiction of the Regional Trial

Court and not unlawful detainer as filed by the plaintiff;

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8. In this jurisdiction, the three kinds of actions for the recovery of

possession of real property are:

1. Accion interdictal, or an ejectment proceeding which

may be either that for forcible entry (detentacion) or unlawful

detainer (desahucio), which is a summary action for recovery of

physical possession where the dispossession has not lasted for

more than one year, and should be brought in the proper inferior

court;

2. Accion publiciana or the plenary action for the

recovery of the real right of possession, which should be brought in

the proper Regional Trial Court when the dispossession has lasted

for more than one year; and

3. Accion reinvindicatoria or accion de reivindicacion,

which is an action for the recovery of ownership which must be

brought in the proper Regional Trial Court.

9. There are two distinctions between the summary ejectment suits

(unlawful detainer and forcible entry) and accion publiciana. The first lies in the

period within which each one can be instituted. Actions for unlawful detainer and

forcible entry must be filed within one year from the date possession is lost,

while an accion publiciana may be filed only after the expiration of that period

but within the period prescribed in the statute of limitations. The second distinction

involves jurisdiction. An accion publiciana may only be filed with the RTC, while a

complaint for unlawful detainer or forcible entry may only be filed with the first level

courts earlier mentioned;

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10. The instant case is not a case for the recovery of physical

possession but a case to determine who has the real right to possess the

subject properties. Based on the Complaint the right to possess the subject

properties in favor of the Plaintiff arose when Defendants executed Deeds of

Absolute Sale in favor of the Plaintiff for Transfer Certificate of Title Nos. T-275800

(M) (Annex “O” of Complaint) and T-275802 (M) (Annex “P” of Complaint),

both dated November 29, 2007;

11. The real issue in this case is NOT the recovery of PHYSICAL

POSSESSION but the DETERMINATION WHO HAS THE REAL RIGHT OF

POSSESSION. The latter being an Accion Publiciana case is cognizable and

within the jurisdiction of the Regional Trial Court. To determine who has the better

real right of possession, it would be more exhaustively ventilated in the Regional

Trial Court;

12. Ejectment proceedings must observe jurisdictional requirements to

complement their summary nature. Among them is the one-year bar within which

to bring the suit. After the lapse of this period, plaintiffs can no longer avail

themselves of the summary suits in the Metropolitan Trial Court (MeTC) or the

Municipal Trial Court (MTC), but must litigate in the Regional Trial Court in an

ordinary action to recover possession (Lopez vs. David, Jr., G.R. No. 152145,

March 30, 2004, 426 SCRA 535).

13. Plaintiff contends that the case is one of unlawful detainer since the

one-year bar within which to bring the suit has been complied since their last

demand letter was on July 7, 2008 and their filing was on February 17, 2009 which

is less than a year since its last demand letter;

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14. But this Honorable Court must consider that the length of time that

the plaintiff was allegedly dispossessed of its property made its cause of action

beyond the ambit of an accion interdictal and effectively made it one for accion

publiciana;

15. Well-settled is the rule that the jurisdiction of the court and the nature

of the action are determined by the averments in the complaint. To give the court

jurisdiction to effect the ejectment of an occupant or a deforciant from the land, it is

necessary that the complaint should embody a statement of facts that brings the

party clearly within the class of cases for which the statutes provide a remedy, as

these proceedings are summary in nature. On its face, the complaint must show

enough ground for the court to assume jurisdiction without resort to parol

testimony (Sarmiento vs. CA, 320 Phil 146,153, November 16, 1995).

16. Pertinent allegations in the plaintiff’s complaint show that the instant

case is not a case for the recovery of physical possession but a case to determine

who has the real right to possess the subject properties. Based on the Complaint

the right to possess the subject properties in favor of the Plaintiff arose when

Defendants executed Deeds of Absolute Sale in favor of the Plaintiff for Transfer

Certificate of Title Nos. T-275800 (M) (Annex “O” of Complaint) and T-275802

(M) (Annex “P” of Complaint), both dated November 29, 2007. This is clearly

stated in the plaintiff’s complaint as follows:

“7. By way of compromise and settlement of the said loans,

defendants had just relinquished title and ownership over the above
properties covered by TCT NO. T-275800 (M) and TCT No. T-275802,
including their improvements, as payment of the aforesaid monetary
obligations, and executed documents on November 29, 2007,
denominated as Voluntary Surrender and Deeds of Absolute Sale. The
copies of the said documents are herewith attached as Annexes “M” and
“N” for Voluntary Surrender, and Annexes “O” and “P” for Deeds of
Absolute Sale, and made integral parts hereof;”

“8. On January 21, 2008, the plaintiff sent a letter to the defendants,
copy furnished their lessees, informing them that by virtue of the
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execution of the said documents, Voluntary Surrender and Deeds

of Sale over the said real properties mortgaged, the plaintiff was
then the rightful owner of the said parcels of land with
improvements and entitled to their possession. Plaintiff thus invited
the defendants and their lessees to its office in Quezon City for the
execution of their respective contracts of lease with the plaintiff as the
new lessor. The said letter was ignored by the defendants and their
lessees despite their receipts thereof. The copy of the said letter is
herewith attached as Annex “O” and made an integral part hereof;
(emphasis supplied)”

17. This fact is also known to the Plaintiff as shown in its letter sent to

the Defendants on January 21, 2008 (Annex “Q” of Complaint) reproduced

below:

21 January 2008

Mr. and Mrs. JULIETO and SUSAN AMADOR

#255 Tibagan St. Sta. Rosa II, Marilao
Bulacan

Dear Sir/Madam:

Pursuant to the Deed of Sale which we have executed, dated 29,

November 2007, pertaining to the parcels of land that you have
voluntarily surrendered to us, located in Sta. Rosa II, Marilao, Bulacan
under the Transfer Certificate of Title Nos. T-275800 (M) and T-275802
(M), please be informed that effective the said date of execution,
Global Asia Finance and Leasing Corporation is the rightful owner
of the said properties. In effect, the possession and all interests,
rights and participation over the said properties shall be absolutely
in favor of our company. In view of this, you are hereby given the
option to lease the said properties to us as well as your present tenants
which you are hereby invited to our office for the signing of your
respective Contract of Lease within five (5) days from receipt hereof
(emphasis supplied).

Thank you very much.

Very truly yours,

Signed
JESSICA D. CHAN
President

18. It is very clear in the above allegations in the complaint and letter

that after the execution of the Deeds of Sale dated 29 November 2007, the

plaintiff asserted its right to possess the subject properties, which the plaintiff

claimed to be its own. Records show that the instant case was filed on February

17, 2009. Obviously, the period between November 29, 2007 to February 17, 2009
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is more than one (1) year. The length of time that the plaintiff was dispossessed of

its property made its cause of action beyond the ambit of an accion interdictal and

effectively made it one for accion publiciana. After the lapse of the one-year

period, the suit must be commenced in the Regional Trial Court via an accion

publiciana which is a suit for recovery of the right to possess. The instant case is

an ordinary civil proceeding to determine the better right of possession of realty

independently of title. Accordingly, this Honorable Court has no jurisdiction over

the subject matter of the claim, and the subject complaint should be dismissed.

19. Based on the foregoing discussion, it is of no moment that the

Plaintiff’s last demand letter to pay and vacate was on July 7, 2008 (Annex “S” of

Complaint) making the filing of the case within one year from the date of last

demand to vacate. What counts is the fact that since November 29, 2007, the

alleged date of execution of the deeds of absolute sale, the alleged right to

possess arose thereby making the filing of the complaint on February 17, 2009

more than the prescribed limit of one (1) year and thus, the proper action is this

case accion publiciana which jurisdiction lies in the Regional Trial Court.

20. The Supreme Court ruling in the case of Encarnacion vs. Amigo

(G.R. No. 169793, September 15, 2006, 502 SCRA 172) is illuminating as follows:

“While it is true that the demand letter was received

by the respondent on February 12, 2001, thereby making the
filing of the complaint for ejectment fall within the requisite
one year from last demand for complaints for unlawful
detainer, it is also equally true that petitioner became the
owner of the subject lot in 1995 and has been since that
time deprived possession of a portion thereof. From the
date of the petitioner’s dispossession in 1995 up to his filing
of his complaint for ejectment in 2001, almost 6 years have
elapsed. The length of time that the petitioner was
dispossessed of his property made his cause of action
beyond the ambit of an accion interdictal and effectively
made it one for accion publiciana. After the lapse of the
one-year period, the suit must be commenced in the
Regional Trial Court via an accion publiciana which is a suit
for recovery of the right to possess. It is an ordinary civil
proceeding to determine the better right of possession of
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realty independently of title. It also refers to an ejectment

suit filed after the expiration of one year from the accrual of
the cause of action or from the unlawful withholding of
possession of the realty (emphasis supplied).”

21. The case of Victoriano M. Encarnacion vs. Nieves Amigo, is in all

fours of the instant case. A cursory reading of the aforesaid case will show that the

ruling of the Supreme Court is applicably extant in the case at bar as discussed in

the following comparison:

(1) Both alleged in their pleadings to have acquired

ownership by virtue of a contract:

In Encarnacion vs. Amigo the High Court said “From

the allegations in the complaint, it appears that the
petitioner became the owner of the property on April 11,
1995 by virtue of the waiver of rights executed by his
mother-in-law”

In the instant case the plaintiff alleged in its

complaint that it became the owner of the subject properties
by virtue of the Voluntary Surrender and Deeds of Absolute
Sale executed by the defendants on November 29, 2007
(paragraph 7 of the Complaint).

(2) Both filed the ejectment case within a year after the
last demand letter to vacate.

In Encarnacion vs. Amigo the Supreme Court stated

“He filed the complaint for ejectment on March 2, 2001 after
his February 1, 2001 letter to the respondent demanding
that the latter vacate the premises remained unheeded”.

In the instant case the plaintiff filed the complaint for

ejectment on February 17, 2009 after its July 7, 2008 letter
to the defendants demanding them to pay and vacate the
premises.

(3) Both filed the ejectment case after the lapse of one-
year period from the deprivation of possession of the
properties involved.

In Encarnacion vs. Amigo the High Court stated

“From the date of the petitioner’s dispossession in 1995 up
to his filing of his complaint for ejectment in 2001, almost 6
years have elapsed.

In the instant case the plaintiff filed the complaint for

ejectment on February 17, 2009 after the lapse of more
than one year when it claimed the right of possession by
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virtue of the deeds of absolute sale executed on November

29, 2007. Obviously, from November 29, 2007 to the date
of filing of complaint on February 17, 2009, more than a
year has already elapsed.

22. The issue of ownership must be passed upon by the Honorable

Court since the question of possession cannot be resolved without deciding the

issue of ownership. Section 16, Rule 70 of the Revised Rules of Court provides as

follows:

SEC. 16. Resolving defense of ownership. – When the

defendant raises the defense of ownership in his pleadings and the
question of possession cannot be resolved without deciding the issue of
ownership, the issue of ownership shall be resolved only to determine
the issue of possession.

23. Plaintiff’s basis of its right to possess is the deeds of absolute

sale executed by the defendants in favor of the Plaintiff for Transfer Certificate

of Title Nos. T-275800 (M) (Annex “O” of Complaint) and T-275802 (M) (Annex

“P” of Complaint), both dated November 29, 2007. Plaintiff alleged that by virtue

of the deeds of sale executed by the defendants, the properties are already its

own. Defendants claim and firmly assert that they are still the owners of the

subject properties since the aforesaid deeds of sale were procured by the Plaintiff

by fraud, deceit and in contravention with existing laws. Defendants were tricked

by Plantiff’s personnel namely Vic Mon A. Musni and Jo-Ann M. Garcia.

Defendants recalled that for more than a month, plaintiff’s personnel keep on

returning to their home to convince them to sign the deed of sale which according

to the plaintiff will stop the interest. They were not told that the documents they will

sign will already divest them of ownership over the said parcels of land. They were

only told that by signing, the interest will stop and if they will not sign, the plaintiff

will padlock their properties. Because of their trust to the plaintiff and fear of losing

their properties, defendants were convinced to sign said deeds of absolute sale

but it is not their intention to sell the subject property considering that its value is

worth more than Three (3) Million in contrast with the amount of consideration in
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the two deeds of sales totaling only to less than a million peso. Defendants are

also wondering why the said documents, the Voluntary Surrender and the Deeds

of Sale were notarized by Atty. Alquin B. Manguera where in fact when they

signed the said documents they were not before the presence of a Notary Public

specifically Atty. Alquin B. Manguera whom they do not know and did not see even

once;

24. Defendants by counsel to protect their rights sent demand letters to

the Plaintiff to cancel or rescind the subject deeds of absolute sale. A machine

copy of said demand letter together with its LBC receipt are hereto attached as

Annex “A” and “A-1” respectively and made integral parts hereof;

25. Defendants have also sent demand letter to the Plaintiff’s counsel to

rectify his act in notarizing the said deeds of absolute sale without the defendants’

presence. A machine copy of said demand letter together with its LBC receipt are

hereto attached as Annex “B” and “B-1” respectively and likewise made integral

parts hereof;

26. Moreover, based on the allegations of the Complaint, the subject

properties were mortgaged by the defendants to the plaintiff to secure a loan. The

act of plaintiff asking the defendants to sign a Voluntary Surrender (Annexes

“M” and “N” of Complaint) and abovesaid deeds of absolute sale by virtue of the

stipulation in the Promissory Notes (Annexes “A” and “C” of Complaint) is in

the nature of pactum commissorium which is prohibited by law;

27. Plaintiff may argue that contracts have the force of law between the

contracting parties and must be complied with in good faith but there are, however,

certain exceptions to the rule, specifically Article 1306 of the Civil Code, which

provides:
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Art. 1306. The contracting parties may establish such

stipulations, clauses, terms and conditions as they may deem
convenient, provided they are not contrary to law, morals, good
customs, public order, or public policy.

28. A scrutiny of the allegations in the Complaint reveals a subtle

intention of the creditor to acquire the property given as security for the loan. This

is embraced in the concept of pactum commissorium, which is proscribed by law.

(Art. 2088, Civil Code. The creditor cannot appropriate the things given by way of pledge or

mortgage, or dispose of them. Any stipulation to the contrary is null and void);

29. The elements of pactum commissorium are as follows: (1) there

should be a property mortgaged by way of security for the payment of the principal

obligation, and (2) there should be a stipulation for automatic appropriation by the

creditor of the thing mortgaged in case of non-payment of the principal obligation

within the stipulated period. (Development Bank of the Philippines vs. Court of Appeals,

284 SCRA 14, 26 (1998), citing Tolentino, Arturo M., Commentaries & Jurisprudence on

the Civil Code of the Philippines, Vol. V, pp. 536-537 (1992), citing Uy Tong vs. Court of

Appeals, 161 SCRA 383 (1988);

30. A significant task in contract interpretation is the ascertainment of the

intention of the parties and looking into the words used by the parties to project

that intention. In this case, the intent to appropriate the property given as collateral

in favor of the creditor appears to be evident, for the debtor is obliged to dispose of

the collateral at the pre-agreed consideration amounting to practically the same

amount as the loan. In effect, the creditor acquires the collateral in the event of

non payment of the loan. This is within the concept of pactum commissorium.

Such stipulation is void. (Art. 2208, Civil Code, quoted above);

31. Defendants are of the belief that what transpired between them of

the plaintiff specifically the execution of voluntary surrender and the deeds of sale
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is against the law, specifically the doctrine in contracts of loan – the “pactum

commissorium”;

32. The Promissory Notes (Annexes “A” and “C” of Complaint) did not

directly state that there will be an automatic appropriation but the wordings herein

is the equivalent of the same and that fact was the one actually happened in the

instant case.

33. The last paragraph of the Promissory Note states: “ The payments in

installments are accepted based on the above enumerated postdated checks. In

the event any of the above postdated checks is rejected or dishonored by the

bank, I/We hereby allow the MORTGAGEE to repossess/foreclose the collateral

covered by this promissory note, and I/WE obligate myself/ourselves to

voluntarily surrender the same, without prejudice to any amicable settlement

that may be agreed upon between me/us and the MORTGAGEE. It is clear that

this provision is in the nature of pactum commissorium. It is true that the execution

of the Voluntary Surrender and the Promissory Notes and Deeds of Sale were not

simultaneous but what was actually happened and the result of the execution of

these contracts is the evil sought to be avoided by the doctrine of pactum

commissorium – the automatic appropriation of the realty in favor of the

Mortgagee.

34. Plaintiff of course might argue that what they did is legal within the

concept of the law on contract but the manner they were able to procure said

contracts in favor of them is manifestly done thru fraud and deceit which is against

morals, public policy and not within the tenets of justice and fair play.

35. Based on the foregoing, the right of possession by the plaintiff

anchored on the aforesaid deeds of absolute sale has no leg to stand on, hence, it
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is still the Defendants who have the better right to possess the subject realty and

accordingly, the instant case should be dismissed. This is in addition to the fact

that the case is one of Accion publiciana which is the plenary action in an ordinary

proceeding to determine the legal right to possess, independent of title (City of

Manila vs. Anselmo, 58 OG 8255). It is an action for the better right to

possession (Alo vs. Rocamoria, 6 Phil. 198).

COUNTER-CLAIM

36. Answering defendant also re-pleads and incorporates herein by

reference, the preceding paragraphs;

37. Plaintiff’s bad faith in procuring the Voluntary Surrender and the

Deeds of Absolute Sale over the subject properties thru evident fraud and

machinations, indisputably shows unconscientious taking advantage of the

Defendants. Had the Plaintiff respected the right of the Defendants to continue

living in a house and lot, their home for so many years, Defendants would not

have suffered the mental anguish, wounded feelings and sleepless nights for fear

of being divested not only of a home for their family but also their way of life;

38. Defendants, having been made to suffer said feelings caused by

Plaintiff’s bad faith, fraud, and machination, should be compensated for their

sufferings in the amount of Fifty Thousand Pesos (Php 50,000.00);

39. To prevent others from emulating the bad example of Plaintiff, it

should be made to pay exemplary or corrective damages in the amount of Twenty

Thousand Pesos (Php 20,000.00);

40. As a consequence of Plaintiff’s bad faith and mischievous acts,

Defendants herein were constrained to engage the services of the undersigned

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counsel for his defense and for which he bound himself to pay the sum of Twenty

Thousand Pesos (Php20,000.00) by way of attorney’s fees plus Three Thousand

Pesos (Php3,000.00) per appearance before this Honorable Court;

41. Deceptis non decipientibus, jura subveniunt. (The law helps

persons who are deceived and not those deceiving.) All persons in need of money

are liable to enter into contractual relationships whatever the condition if only to

alleviate their financial burden albeit temporarily. Hence, courts are duty bound to

exercise caution in the interpretation and resolution of contracts lest the lenders

devour the borrowers like vultures do with their prey.

PRAYER

FOREGOING PREMISES CONSIDERED, it is most respectfully prayed to

this Honorable Court that:

1. The instant complaint be dismissed for lack of jurisdiction over the

subject matter of the claim;

2. Plaintiff be ordered to pay the following:

a). The amount of P50,000.00 as moral damages;

b). The amount of P20,000.00 as exemplary damages;

c). The amount of P20,000.00 as acceptance fee and P3,000.00 per

appearance or by way of and as attorney’s fees; and

d). Cost of suit.

Such other reliefs and remedies that this Honorable Court may deem just

and equitable under the premises are likewise prayed for.

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RESPECTFULLY SUBMITTED.

Quezon City for Municipality of Marilao, July 6, 2009.

THE LAW FIRM OF TALAMPAS & ASSOCIATES
Counsel for the Defendants 
Unit B­8, 2nd Floor, Amina Building
Tandang Sora Avenue, Quezon City

For the Firm:

RUBEN C. TALAMPAS, JR.

PTR No. 1238544/1.15.09/Quezon City
IBP No. 752019/1.15.09/Quezon City
Roll No. 53536
MCLE Compliance: BAR Admission 2007

Copy furnished:

ATTY. ALQUIN B. MANGUERA

Counsel for the Plaintiff
Chua and Associates Law Office
Suite 528 Downtown Ctr. Bldg.
516 Quintin Paredes St., Binondo, Manila

EXPLANATION for Service by Registered Mail

Due to lack of material time and available manpower to personally serve a copy of the foregoing motion on the
opposing counsel, and considering the distance between the office of the undersigned and that of the opposing counsel, a
copy thereof was served via registered mail.

Ruben C. Talampas, Jr.

VERIFICATION

We, Spouses Julieto and Susan Amador, both of legal age, after having been duly sworn in
accordance with law, hereby depose and state that we are the defendants in the instant case and as such, we
caused the preparation of the foregoing Answer, which we have read, and we hereby certify that the
allegations contained therein are true and correct based on our own personal knowledge and authentic records
on hand.

JULIETO AMADOR SUSAN AMADOR

Affiant Affiant

SUBSCRIBED AND SWORN to before me this 6th day of July 2009 in the City of Manila,
Philippines.

Doc. No. ________;

Page No. _______;
Book No. _______;
Series of 2009.