METROPOLIS DEVELOPMENT CORPORATION, petitioner,

Republic of the Philippines vs.

SUPREME COURT COURT OF APPEALS, CENTRAL BANK OF THE PHILIPPINES, JOSE B.
Manila FERNANDEZ, JR., CARLOTA P. VALENZUELA, ARNULFO AURELLANO AND
RAMON TIAOQUI, respondents.
EN BANC
G.R. No. 78894 December 11, 1991
G.R. No. 70054 December 11, 1991
BANCO FILIPINO SAVINGS AND MORTGAGE BANK, petitioner
vs.
BANCO FILIPINO SAVINGS AND MORTGAGE BANK, petitioner,
COURT OF APPEALS, THE CENTRAL BANK OF THE PHILIPPINES, JOSE B.
vs.
FERNANDEZ, JR., CARLOTA P. VALENZUELA, ARNULFO B. AURELLANO AND
THE MONETARY BOARD, CENTRAL BANK OF THE PHILIPPINES, JOSE B.
RAMON TIAOQUI, respondents.
FERNANDEZ, CARLOTA P. VALENZUELA, ARNULFO B. AURELLANO and
RAMON V. TIAOQUI, respondents.
G.R. No. 81303 December 11, 1991
G.R. No. 68878 December 11, 1991
PILAR DEVELOPMENT CORPORATION, petitioner
vs.
BANCO FILIPINO SAVINGS AND MORTGAGE BANK, petitioner,
COURT OF APPEALS, HON. MANUEL M. COSICO, in his capacity as Presiding
vs.
Judge of Branch 136 of the Regional Trial Court of Makati, CENTRAL BANK OF
HON. INTERMEDIATE APPELLATE COURT and CELESTINA S. PAHIMUNTUNG,
THE PHILIPPINES AND CARLOTA P. VALENZUELA, respondents.
assisted by her husband, respondents.

G.R. No. 81304 December 11, 1991

G.R. No. 77255-58 December 11, 1991

BF HOMES DEVELOPMENT CORPORATION, petitioner,

TOP MANAGEMENT PROGRAMS CORPORATION AND PILAR DEVELOPMENT
vs.
CORPORATION, petitioners,
THE COURT OF APPEALS, CENTRAL BANK AND CARLOTA P. VALENZUELA,
vs.
respondents.
THE COURT OF APPEALS, The Executive Judge of the Regional Trial Court of
Cavite, Ex-Officio Sheriff REGALADO E. EUSEBIO, BANCO FILIPINO SAVINGS
AND MORTGAGE BANK, CARLOTA P. VALENZUELA AND SYCIP, SALAZAR, G.R. No. 90473 December 11, 1991
HERNANDEZ AND GATMAITAN, respondents.
EL GRANDE DEVELOPMENT CORPORATION, petitioner,
G.R. No. 78766 December 11, 1991 vs.
THE COURT OF APPEALS, THE EXECUTIVE JUDGE of the
EL GRANDE CORPORATION, petitioner,
vs. Regional Trial Court of Cavite, CLERK OF COURT and Ex-
THE COURT OF APPEALS, THE EXECUTIVE JUDGE of The Regional Trial Court Officio Sheriff ADORACION VICTA, BANCO FILIPINO
and Ex-Officio Sheriff REGALADO E. EUSEBIO, BANCO FILIPINO SAVINGS SAVINGS AND MORTGAGE BANK, CARLOTA P.
AND MORTGAGE BANK, CARLOTA P. VALENZUELA AND SYCIP, SALAZAR,
FELICIANO AND HERNANDEZ, respondents. VALENZUELA AND SYCIP, SALAZAR,

G.R. No. 78767 December 11, 1991

HERNANDEZ AND GATMAITAN, respondents.

1
Panganiban, Benitez, Barinaga & Bautista Law Offices collaborating counsel for
petitioner.
Florencio T. Domingo, Jr. and Crisanto S. Cornejo for intervenors.
MEDIALDEA, J.:p
This refers to nine (9) consolidated cases concerning the legality of the closure and
receivership of petitioner Banco Filipino Savings and Mortgage Bank (Banco Filipino
for brevity) pursuant to the order of respondent Monetary Board. Six (6) of these
cases, namely, G.R. Nos. 68878, 77255-68, 78766, 81303, 81304 and 90473 involve
the common issue of whether or not the liquidator appointed by the respondent
Central Bank (CB for brevity) has the authority to prosecute as well as to defend suits,
and to foreclose mortgages for and in behalf of the bank while the issue on the
validity of the receivership and liquidation of the latter is pending resolution in G.R.
No. 7004. Corollary to this issue is whether the CB can be sued to fulfill financial
commitments of a closed bank pursuant to Section 29 of the Central Bank Act. On the
other hand, the other three (3) cases, namely, G.R. Nos. 70054, which is the main
case, 78767 and 78894 all seek to annul and set aside M.B. Resolution No. 75 issued
by respondents Monetary Board and Central Bank on January 25, 1985.
The antecedent facts of each of the nine (9) cases are as follows:
G.R No. 68878
This is a motion for reconsideration, filed by respondent Celestina Pahimuntung, of
the decision promulgated by thisCourt on April 8, 1986, granting the petition for review
on certiorari and reversing the questioned decision of respondent appellate court,
which annulled the writ of possession issued by the trial court in favor of petitioner.
The respondent-movant contends that the petitioner has no more personality to
continue prosecuting the instant case considering that petitioner bank was placed
under receivership since January 25, 1985 by the Central Bank pursuant to the
resolution of the Monetary Board.
G.R. Nos. 77255-58
Petitioners Top Management Programs Corporation (Top Management for brevity)
and Pilar Development Corporation (Pilar Development for brevity) are corporations
engaged in the business of developing residential subdivisions.
Top Management obtained a loan of P4,836,000 from Banco Filipino as evidenced by
a promissory note dated January 7, 1982 payable in three years from date. The loan
was secured by real estate mortgage in its various properties in Cavite. Likewise,
Pilar Development obtained loans from Banco Filipino between 1982 and 1983 in the
principal amounts of P6,000,000, P7,370,000 and P5,300,000 with maturity dates on
December 28, 1984, January 5, 1985 and February 16, 1984, respectively. To secure
the loan, Pilar Development mortgaged to Banco Filipino various properties in
Dasmariñas, Cavite.
On January 25, 1985, the Monetary Board issued a resolution finding Banco Filipino
insolvent and unable to do business without loss to its creditors and depositors. It
placed Banco Filipino under receivership of Carlota Valenzuela, Deputy Governor of
the Central Bank.
On March 22, 1985, the Monetary Board issued another resolution placing the bank
under liquidation and designating Valenzuela as liquidator. By virtue of her authority
as liquidator, Valenzuela appointed the law firm of Sycip, Salazar, et al. to represent
Banco Filipino in all litigations.
On March 26, 1985, Banco Filipino filed the petition for certiorari in G.R. No. 70054
questioning the validity of the resolutions issued by the Monetary Board authorizing
the receivership and liquidation of Banco Filipino.
In a resolution dated August 29, 1985, this Court in G.R. No. 70054 resolved to issue
a temporary restraining order, effective during the same period of 30 days, enjoining
the respondents from executing further acts of liquidation of the bank; that acts such
as receiving collectibles and receivables or paying off creditors' claims and other
transactions pertaining to normal operations of a bank are not enjoined. The Central
Bank is ordered to designate a comptroller for Banco Filipino.
Subsequently, Top Management failed to pay its loan on the due date. Hence, the law
firm of Sycip, Salazar, et al. acting as counsel for Banco Filipino under authority of
Valenzuela as liquidator, applied for extra-judicial foreclosure of the mortgage over
Top Management's properties. Thus, the Ex-Officio Sheriff of the Regional Trial Court
of Cavite issued a notice of extra-judicial foreclosure sale of the properties on
December 16, 1985.
On December 9, 1985, Top Management filed a petition for injunction and prohibition
with the respondent appellate court docketed as CA-G.R. SP No. 07892 seeking to
2
enjoin the Regional Trial Court of Cavite, the ex-officio sheriff of said court and Sycip,
Salazar, et al. from proceeding with foreclosure sale.
Similarly, Pilar Development defaulted in the payment of its loans. The law firm of
Sycip, Salazar, et al. filed separate applications with the ex-officio sheriff of the
Regional Trial Court of Cavite for the extra-judicial foreclosure of mortgage over its
properties.
Hence, Pilar Development filed with the respondent appellate court a petition for
prohibition with prayer for the issuance of a writ of preliminary injunction docketed as
CA-G.R SP Nos. 08962-64 seeking to enjoin the same respondents from enforcing
the foreclosure sale of its properties. CA-G.R. SP Nos. 07892 and 08962-64 were
consolidated and jointly decided.
On October 30, 1986, the respondent appellate court rendered a decision dismissing
the aforementioned petitions.
Hence, this petition was filed by the petitioners Top Management and Pilar
Development alleging that Carlota Valenzuela, who was appointed by the Monetary
Board as liquidator of Banco Filipino, has no authority to proceed with the foreclosure
sale of petitioners' properties on the ground that the resolution of the issue on the
validity of the closure and liquidation of Banco Filipino is still pending with this Court in
G.R. 70054.
G.R. No. 78766
Petitioner El Grande Development Corporation (El Grande for brevity) is engaged in
the business of developing residential subdivisions. It was extended by respondent
Banco Filipino a credit accommodation to finance its housing program. Hence,
petitioner was granted a loan in the amount of P8,034,130.00 secured by real estate
mortgages on its various estates located in Cavite.
On January 15, 1985, the Monetary Board forbade Banco Filipino to do business,
placed it under receivership and designated Deputy Governor Carlota Valenzuela as
receiver. On March 22, 1985, the Monetary Board confirmed Banco Filipino's
insolvency and designated the receiver Carlota Valenzuela as liquidator.
When petitioner El Grande failed to pay its indebtedness to Banco Filipino, the latter
thru its liquidator, Carlota Valenzuela, initiated the foreclosure with the Clerk of Court
and Ex-officio sheriff of RTC Cavite. Subsequently, on March 31, 1986, the ex-officio
sheriff issued the notice of extra-judicial sale of the mortgaged properties of El
Grande scheduled on April 30, 1986.
In order to stop the public auction sale, petitioner El Grande filed a petition for
prohibition with the Court of Appeals alleging that respondent Carlota Valenzuela
could not proceed with the foreclosure of its mortgaged properties on the ground that
this Court in G.R. No. 70054 issued a resolution dated August 29, 1985, which
restrained Carlota Valenzuela from acting as liquidator and allowed Banco Filipino to
resume banking operations only under a Central Bank comptroller.
On March 2, 1987, the Court of Appeals rendered a decision dismissing the petition.
Hence this petition for review on certiorari was filed alleging that the respondent court
erred when it held in its decision that although Carlota P. Valenzuela was restrained
by this Honorable Court from exercising acts in liquidation of Banco Filipino Savings &
Mortgage Bank, she was not legally precluded from foreclosing the mortgage over the
properties of the petitioner through counsel retained by her for the purpose.
G.R. No. 81303
On November 8, 1985, petitioner Pilar Development Corporation (Pilar Development
for brevity) filed an action against Banco Filipino, the Central Bank and Carlota
Valenzuela for specific performance, docketed as Civil Case No. 12191. It appears
that the former management of Banco Filipino appointed Quisumbing & Associates as
counsel for Banco Filipino. On June 12, 1986 the said law firm filed an answer for
Banco Filipino which confessed judgment against Banco Filipino.
On June 17, 1986, petitioner filed a second amended complaint. The Central Bank
and Carlota Valenzuela, thru the law firm Sycip, Salazar, Hernandez and Gatmaitan
filed an answer to the complaint.
On June 23, 1986, Sycip, et al., acting for all the defendants including Banco Filipino
moved that the answer filed by Quisumbing & Associates for defendant Banco Filipino
be expunged from the records. Despite opposition from Quisumbing & Associates, the
trial court granted the motion to expunge in an order dated March 17, 1987. Petitioner
Pilar Development moved to reconsider the order but the motion was denied.
Petitioner Pilar Development filed with the respondent appellate court a petition for
certiorari and mandamus to annul the order of the trial court. The Court of Appeals
rendered a decision dismissing the petition. A petition was filed with this Court but
was denied in a resolution dated March 22, 1988. Hence, this instant motion for
reconsideration.
G.R. No. 81304
3
On July 9, 1985, petitioner BF Homes Incorporated (BF Homes for brevity) filed an
action with the trial court to compel the Central Bank to restore petitioner's; financing
facility with Banco Filipino.
The Central Bank filed a motion to dismiss the action. Petitioner BF Homes in a
supplemental complaint impleaded as defendant Carlota Valenzuela as receiver of
Banco Filipino Savings and Mortgage Bank.
On April 8, 1985, petitioner filed a second supplemental complaint to which
respondents filed a motion to dismiss.
On July 9, 1985, the trial court granted the motion to dismiss the supplemental
complaint on the grounds (1) that plaintiff has no contractual relation with the
defendants, and (2) that the Intermediate Appellate Court in a previous decision in
AC-G.R. SP. No. 04609 had stated that Banco Filipino has been ordered closed and
placed under receivership pending liquidation, and thus, the continuation of the facility
sued for by the plaintiff has become legally impossible and the suit has become moot.
The order of dismissal was appealed by the petitioner to the Court of Appeals. On
November 4, 1987, the respondent appellate court dismissed the appeal and affirmed
the order of the trial court.
Hence, this petition for review on certiorari was filed, alleging that the respondent
court erred when it found that the private respondents should not be the ones to
respond to the cause of action asserted by the petitioner and the petitioner did not
have any cause of action against the respondents Central Bank and Carlota
Valenzuela.
G.R. No. 90473
Petitioner El Grande Development Corporation (El Grande for brevity) obtained a loan
from Banco Filipino in the amount of P8,034,130.00, secured by a mortgage over its
five parcels of land located in Cavite which were covered by Transfer Certificate of
Title Nos. T-82187, T-109027, T-132897, T-148377, and T-79371 of the Registry of
Deeds of Cavite.
When Banco Filipino was ordered closed and placed under receivership in 1985, the
appointed liquidator of BF, thru its counsel Sycip, Salazar, et al. applied with the ex-
officio sheriff of the Regional Trial Court of Cavite for the extrajudicial foreclosure of
the mortgage constituted over petitioner's properties. On March 24, 1986, the ex-
officio sheriff issued a notice of extrajudicial foreclosure sale of the properties of
petitioner.
Thus, petitioner filed with the Court of Appeals a petition for prohibition with prayer for
writ of preliminary injunction to enjoin the respondents from foreclosing the mortgage
and to nullify the notice of foreclosure.
On June 16, 1989, respondent Court of Appeals rendered a decision dismissing the
petition.
Not satisfied with the decision, petitioner filed the instant petition for review on
certiorari.
G.R. No. 70054
Banco Filipino Savings and Mortgage Bank was authorized to operate as such under
M.B. Resolution No. 223 dated February 14, 1963. It commenced operations on July
9, 1964. It has eighty-nine (89) operating branches, forty-six (46) of which are in
Manila, with more than three (3) million depositors.
As of July 31, 1984, the list of stockholders showed the major stockholders to be:
Metropolis Development Corporation, Apex Mortgage and Loans Corporation, Filipino
Business Consultants, Tiu Family Group, LBH Inc. and Anthony Aguirre.
Petitioner Bank had an approved emergency advance of P119.7 million under M.B.
Resolution No. 839 dated June 29, 1984. This was augmented with a P3 billion credit
line under M.B. Resolution No. 934 dated July 27, 1984.
On the same date, respondent Board issued M.B. Resolution No. 955 placing
petitioner bank under conservatorship of Basilio Estanislao. He was later replaced by
Gilberto Teodoro as conservator on August 10, 1984. The latter submitted a report
dated January 8, 1985 to respondent Board on the conservatorship of petitioner bank,
which report shall hereinafter be referred to as the Teodoro report.
Subsequently, another report dated January 23, 1985 was submitted to the Monetary
Board by Ramon Tiaoqui, Special Assistant to the Governor and Head, SES
Department II of the Central Bank, regarding the major findings of examination on the
financial condition of petitioner BF as of July 31, 1984. The report, which shall be
referred to herein as the Tiaoqui Report contained the following conclusion and
recommendation:
The examination findings as of July 31, 1984, as shown earlier,
indicate one of insolvency and illiquidity and further confirms the
above conclusion of the Conservator.
4
 All the foregoing provides sufficient justification for forbidding the
bank from engaging in banking.
Foregoing considered, the following are recommended:
1. Forbid the Banco Filipino Savings & Mortgage
Bank to do business in the Philippines effective
the beginning of office January 1985, pursuant to
Sec. 29 of R.A No. 265, as amended;
2. Designate the Head of the Conservator Team
at the bank, as Receiver of Banco Filipino
Savings & Mortgage Bank, to immediately take
charge of the assets and liabilities, as
expeditiously as possible collect and gather all
the assets and administer the same for the
benefit of all the creditors, and exercise all the
powers necessary for these purposes including
but not limited to bringing suits and foreclosing
mortgages in the name of the bank.
3. The Board of Directors and the principal
officers from Senior Vice Presidents, as listed in
the attached Annex "A" be included in the
watchlist of the Supervision and Examination
Sector until such time that they shall have
cleared themselves.
4. Refer to the Central Bank's Legal Department
and Office of Special Investigation the report on
the findings on Banco Filipino for investigation
and possible prosecution of directors, officers,
and employees for activities which led to its
insolvent position. (pp- 61-62, Rollo)
On January 25, 1985, the Monetary Board issued the assailed MB Resolution No. 75
which ordered the closure of BF and which further provides:
After considering the report dated January 8, 1985 of the
Conservator for Banco Filipino Savings and Mortgage Bank that the
continuance in business of the bank would involve probable loss to
its depositors and creditors, and after discussing and finding to be
true the statements of the Special Assistant to the Governor and
Head, Supervision and Examination Sector (SES) Department II as
recited in his memorandum dated January 23, 1985, that the Banco
Filipino Savings & Mortgage Bank is insolvent and that its
continuance in business would involve probable loss to its
depositors and creditors, and in pursuance of Sec. 29 of RA 265, as
amended, the Board decided:
1. To forbid Banco Filipino Savings and Mortgage
Bank and all its branches to do business in the
Philippines;
2. To designate Mrs. Carlota P. Valenzuela,
Deputy Governor as Receiver who is hereby
directly vested with jurisdiction and authority to
immediately take charge of the bank's assets and
liabilities, and as expeditiously as possible collect
and gather all the assets and administer the
same for the benefit of its creditors, exercising all
the powers necessary for these purposes
including but not limited to, bringing suits and
foreclosing mortgages in the name of the bank;
3. To designate Mr. Arnulfo B. Aurellano, Special
Assistant to the Governor, and Mr. Ramon V.
Tiaoqui, Special Assistant to the Governor and
Head, Supervision and Examination Sector
Department II, as Deputy Receivers who are
likewise hereby directly vested with jurisdiction
and authority to do all things necessary or proper
to carry out the functions entrusted to them by
the Receiver and otherwise to assist the Receiver
in carrying out the functions vested in the
Receiver by law or Monetary Board Resolutions;
4. To direct and authorize Management to do all
other things and carry out all other measures
necessary or proper to implement this Resolution
and to safeguard the interests of depositors,
creditors and the general public; and
5. In consequence of the foregoing, to terminate
the conservatorship over Banco Filipino Savings
and Mortgage Bank. (pp. 10-11, Rollo, Vol. I)
5
On February 2, 1985, petitioner BF filed a complaint docketed as Civil Case No. 9675
with the Regional Trial Court of Makati to set aside the action of the Monetary Board
placing BF under receivership.
On February 28, 1985, petitioner filed with this Court the instant petition for certiorari
and mandamus under Rule 65 of the Rules of Court seeking to annul the resolution of
January 25, 1985 as made without or in excess of jurisdiction or with grave abuse of
discretion, to order respondents to furnish petitioner with the reports of examination
which led to its closure and to afford petitioner BF a hearing prior to any resolution
that may be issued under Section 29 of R.A. 265, also known as Central Bank Act.
On March 19, 1985, Carlota Valenzuela, as Receiver and Arnulfo Aurellano and
Ramon Tiaoqui as Deputy Receivers of Banco Filipino submitted their report on the
receivership of BF to the Monetary Board, in compliance with the mandate of Sec. 29
of R.A. 265 which provides that the Monetary Board shall determine within sixty (60)
days from date of receivership of a bank whether such bank may be
reorganized/permitted to resume business or ordered to be liquidated. The report
contained the following recommendation:
In view of the foregoing and considering that the condition of the
banking institution continues to be one of insolvency, i.e., its
realizable assets are insufficient to meet all its liabilities and that the
bank cannot resume business with safety to its depositors, other
creditors and the general public, it is recommended that:
1. Banco Filipino Savings & Mortgage Bank be liquidated pursuant to paragraph 3,
Sec. 29 of RA No. 265, as amended;
2. The Legal Department, through the Solicitor General, be authorized to file in the
proper court a petition for assistance in th liquidation of the Bank;
3. The Statutory Receiver be designated as the Liquidator of said bank; and
4. Management be instructed to inform the stockholders of Banco Filipino Savings &
Mortgage Bank of the Monetary Board's decision liquidate the Bank. (p. 167, Rollo,
Vol. I)
On July 23, 1985, petitioner filed a motion before this Court praying that a restraining
order or a writ of preliminary injunction be issued to enjoin respondents from causing
the dismantling of BF signs in its main office and 89 branches. This Court issued a
resolution on August 8, 1985 ordering the issuance of the aforesaid temporary
restraining order.
On August 20, 1985, the case was submitted for resolution.
In a resolution dated August 29, 1985, this Court Resolved direct the respondents
Monetary Board and Central Bank hold hearings at which the petitioner should be
heard, and terminate such hearings and submit its resolution within thirty (30) days.
This Court further resolved to issue a temporary restraining order enjoining the
respondents from executing further acts of liquidation of a bank. Acts such as
receiving collectibles and receivables or paying off creditors' claims and other
transactions pertaining to normal operations of a bank were no enjoined. The Central
Bank was also ordered to designate comptroller for the petitioner BF. This Court also
ordered th consolidation of Civil Cases Nos. 8108, 9676 and 10183 in Branch 136 of
the Regional Trial Court of Makati.
However, on September 12, 1985, this Court in the meantime suspended the hearing
it ordered in its resolution of August 29, 1985.
On October 8, 1985, this Court submitted a resolution order ing Branch 136 of the
Regional Trial Court of Makati the presided over by Judge Ricardo Francisco to
conduct the hear ing contemplated in the resolution of August 29, 1985 in the most
expeditious manner and to submit its resolution to this Court.
In the Court's resolution of February 19, 1987, the Court stated that the hearing
contemplated in the resolution of August 29, 1985, which is to ascertain whether
substantial administrative due process had been observed by the respondent
Monetary Board, may be expedited by Judge Manuel Cosico who now presides the
court vacated by Judge Ricardo Francisco, who was elevated to the Court of Appeals,
there being no legal impediment or justifiable reason to bar the former from
conducting such hearing. Hence, this Court directed Judge Manuel Cosico to
expedite the hearing and submit his report to this Court.
On February 20, 1988, Judge Manuel Cosico submitted his report to this Court with
the recommendation that the resolutions of respondents Monetary Board and Central
Bank authorizing the closure and liquidation of petitioner BP be upheld.
On October 21, 1988, petitioner BF filed an urgent motion to reopen hearing to which
respondents filed their comment on December 16, 1988. Petitioner filed their reply to
respondent's comment of January 11, 1989. After having deliberated on the grounds
raised in the pleadings, this Court in its resolution dated August 3, 1989 declared that
its intention as expressed in its resolution of August 29, 1985 had not been faithfully
adhered to by the herein petitioner and respondents. The aforementioned resolution
had ordered a healing on the reports that led respondents to order petitioner's closure
and its alleged pre-planned liquidation. This Court noted that during the referral
hearing however, a different scheme was followed. Respondents merely submitted to
the commissioner their findings on the examinations conducted on petitioner,
affidavits of the private respondents relative to the findings, their reports to the
Monetary Board and several other documents in support of their position while
petitioner had merely submitted objections to the findings of respondents, counter-
6
affidavits of its officers and also documents to prove its claims. Although the records
disclose that both parties had not waived cross-examination of their deponents, no
such cross-examination has been conducted. The reception of evidence in the form of
affidavits was followed throughout, until the commissioner submitted his report and
recommendations to the Court. This Court also held that the documents pertinent to
the resolution of the instant petition are the Teodoro Report, Tiaoqui Report,
Valenzuela, Aurellano and Tiaoqui Report and the supporting documents which were
made as the bases by the reporters of their conclusions contained in their respective
reports. This Court also Resolved in its resolution to re-open the referral hearing that
was terminated after Judge Cosico had submitted his report and recommendation
with the end in view of allowing petitioner to complete its presentation of evidence and
also for respondents to adduce additional evidence, if so minded, and for both parties
to conduct the required cross-examination of witnesses/deponents, to be done within
a period of three months. To obviate all doubts on Judge Cosico's impartiality, this
Court designated a new hearing commissioner in the person of former Judge
Consuelo Santiago of the Regional Trial Court, Makati, Branch 149 (now Associate
Justice of the Court of Appeals).
Three motions for intervention were filed in this case as follows: First, in G.R. No.
70054 filed by Eduardo Rodriguez and Fortunate M. Dizon, stockholders of petitioner
bank for and on behalf of other stockholders of petitioner; second, in G.R. No. 78894,
filed by the same stockholders, and, third, again in G.R. No. 70054 by BF Depositors'
Association and others similarly situated. This Court, on March 1, 1990, denied the
aforesaid motions for intervention.
On January 28, 1991, the hearing commissioner, Justice Consuelo Santiago of the
Court of Appeals submitted her report and recommendation (to be hereinafter called,
"Santiago Report") on the following issues stated therein as follows:
l) Had the Monetary Board observed the
procedural requirements laid down in Sec. 29 of
R.A. 265, as amended to justify th closure of the
Banco Filipino Savings and Mortgage Bank?
2) On the date of BF's closure (January 25, 1985)
was its condition one of insolvency or would its
continuance in business involve probable loss to
its depositors or creditors?
The commissioner after evaluation of the evidence presented found and
recommended the following:
1. That the TEODORO and TIAOQUI reports did
not establish in accordance with See. 29 of the
R.A. 265, as amended, BF's insolvency as of July
31, 1984 or that its continuance in business
thereafter would involve probable loss to its
depositors or creditors. On the contrary, the
evidence indicates that BF was solvent on July
31, 1984 and that on January 25, 1985, the day it
was closed, its insolvency was not clearly
established;
2. That consequently, BF's closure on January
25, 1985, not having satisfied the requirements
prescribed under Sec. 29 of RA 265, as
amended, was null and void.
3. That accordingly, by way of correction, BF
should be allowed to re-open subject to such
laws, rules and regulations that apply to its
situation.
Respondents thereafter filed a motion for leave to file objections to the Santiago
Report. In the same motion, respondents requested that the report and
recommendation be set for oral argument before the Court. On February 7, 1991, this
Court denied the request for oral argument of the parties.
On February 25, 1991, respondents filed their objections to the Santiago Report. On
March 5, 1991, respondents submitted a motion for oral argument alleging that this
Court is confronted with two conflicting reports on the same subject, one upholding on
all points the Monetary Board's closure of petitioner, (Cosico Report dated February
19, 1988) and the other (Santiago Report dated January 25, 1991) holding that
petitioner's closure was null and void because petitioner's insolvency was not clearly
established before its closure; and that such a hearing on oral argrument will
therefore allow the parties to directly confront the issues before this Court.
On March 12, 1991 petitioner filed its opposition to the motion for oral argument. On
March 20, 1991, it filed its reply to respondents' objections to the Santiago Report.
On June 18, 1991, a hearing was held where both parties were heard on oral
argument before this Court. The parties, having submitted their respective
memoranda, the case is now submitted for decision.
G.R. No. 78767
On February 2, 1985, Banco Filipino filed a complaint with the trial court docketed as
Civil Case No. 9675 to annul the resolution of the Monetary Board dated January 25,
1985, which ordered the closure of the bank and placed it under receivership.
7
On February 14, 1985, the Central Bank and the receivers filed a motion to dismiss
the complaint on the ground that the receivers had not authorized anyone to file the
action. In a supplemental motion to dismiss, the Central Bank cited the resolution of
this Court dated October 15, 1985 in G.R. No. 65723 entitled, "Central Bank et al. v.
Intermediate Appellate Court" whereby We held that a complaint questioning the
validity of the receivership established by the Central Bank becomes moot and
academic upon the initiation of liquidation proceedings.
While the motion to dismiss was pending resolution, petitioner herein Metropolis
Development Corporation (Metropolis for brevity) filed a motion to intervene in the
aforestated civil case on the ground that as a stockholder and creditor of Banco
Filipino, it has an interest in the subject of the action.
On July 19, 1985, the trial court denied the motion to dismiss and also denied the
motion for reconsideration of the order later filed by Central Bank. On June 5, 1985,
the trial court allowed the motion for intervention.
Hence, the Central Bank and the receivers of Banco Filipino filed a petition for
certiorari with the respondent appellate court alleging that the trial court committed
grave abuse of discretion in not dismissing Civil Case No. 9675.
On March 17, 1986, the respondent appellate court rendered a decision annulling and
setting aside the questioned orders of the trial court, and ordering the dismissal of the
complaint filed by Banco Filipino with the trial court as well as the complaint in
intervention of petitioner Metropolis Development Corporation.
Hence this petition was filed by Metropolis Development Corporation questioning the
decision of the respondent appellate court.
G.R. No. 78894
On February 2, 1985, a complaint was filed with the trial court in the name of Banco
Filipino to annul the resolution o the Monetary Board dated January 25, 1985 which
ordered the closure of Banco Filipino and placed it under receivership. The receivers
appointed by the Monetary Board were Carlota Valenzuela, Arnulfo Aurellano and
Ramon Tiaoqui.
On February 14, 1985, the Central Bank and the receiver filed a motion to dismiss the
complaint on the ground that the receiver had not authorized anyone to file the action.
On March 22, 1985, the Monetary Board placed the bank under liquidation and
designated Valenzuela as liquidator and Aurellano and Tiaoqui as deputy liquidators.
The Central Bank filed a supplemental motion to dismiss which was denied. Hence,
the latter filed a petition for certiorari with the respondent appellate court to set aside
the order of the trial court denying the motion to dismiss. On March 17, 1986, the
respondent appellate court granted the petition and dismissed the complaint of Banco
Filipino with the trial court.
Thus, this petition for certiorari was filed with the petitioner contending that a bank
which has been closed and placed under receivership by the Central Bank under
Section 29 of RA 265 could file suit in court in its name to contest such acts of the
Central Bank, without the authorization of the CB-appointed receiver.
After deliberating on the pleadings in the following cases:
1. In G.R. No. 68878, the respondent's motion for
reconsideration;
2. In G.R. Nos. 77255-58, the petition, comment,
reply, rejoinder and sur-rejoinder;
2. In G.R. No. 78766, the petition, comment,
reply and rejoinder;
3. In G.R. No. 81303, the petitioner's motion for
reconsideration;
4. In G.R.No. 81304, the petition, comment and
reply;
5. Finally, in G.R. No. 90473, the petition
comment and reply.
We find the motions for reconsideration in G.R. Nos. 68878 and 81303 and the
petitions in G.R. Nos. 77255-58, 78766, 81304 and 90473 devoid of merit.
Section 29 of the Republic Act No. 265, as amended known as the Central Bank Act,
provides that when a bank is forbidden to do business in the Philippines and placed
under receivership, the person designated as receiver shall immediately take charge
of the bank's assets and liabilities, as expeditiously as possible, collect and gather all
the assets and administer the same for the benefit of its creditors, and represent the
bank personally or through counsel as he may retain in all actions or proceedings for
or against the institution, exercising all the powers necessary for these purposes
including, but not limited to, bringing and foreclosing mortgages in the name of the
bank. If the Monetary Board shall later determine and confirm that banking institution
8
is insolvent or cannot resume business safety to depositors, creditors and the general
public, it shall, public interest requires, order its liquidation and appoint a liquidator
who shall take over and continue the functions of receiver previously appointed by
Monetary Board. The liquid for may, in the name of the bank and with the assistance
counsel as he may retain, institute such actions as may necessary in the appropriate
court to collect and recover a counts and assets of such institution or defend any
action ft against the institution.
When the issue on the validity of the closure and receivership of Banco Filipino bank
was raised in G.R. No. 70054, pendency of the case did not diminish the powers and
authority of the designated liquidator to effectuate and carry on the a ministration of
the bank. In fact when We adopted a resolute on August 25, 1985 and issued a
restraining order to respondents Monetary Board and Central Bank, We enjoined me
further acts of liquidation. Such acts of liquidation, as explained in Sec. 29 of the
Central Bank Act are those which constitute the conversion of the assets of the
banking institution to money or the sale, assignment or disposition of the s to creditors
and other parties for the purpose of paying debts of such institution. We did not
prohibit however acts a as receiving collectibles and receivables or paying off credits
claims and other transactions pertaining to normal operate of a bank. There is no
doubt that the prosecution of suits collection and the foreclosure of mortgages against
debtors the bank by the liquidator are among the usual and ordinary transactions
pertaining to the administration of a bank. their did Our order in the same resolution
dated August 25, 1985 for the designation by the Central Bank of a comptroller Banco
Filipino alter the powers and functions; of the liquid insofar as the management of the
assets of the bank is concerned. The mere duty of the comptroller is to supervise
counts and finances undertaken by the liquidator and to d mine the propriety of the
latter's expenditures incurred behalf of the bank. Notwithstanding this, the liquidator is
empowered under the law to continue the functions of receiver is preserving and
keeping intact the assets of the bank in substitution of its former management, and to
prevent the dissipation of its assets to the detriment of the creditors of the bank.
These powers and functions of the liquidator in directing the operations of the bank in
place of the former management or former officials of the bank include the retaining of
counsel of his choice in actions and proceedings for purposes of administration.
Clearly, in G.R. Nos. 68878, 77255-58, 78766 and 90473, the liquidator by himself or
through counsel has the authority to bring actions for foreclosure of mortgages
executed by debtors in favor of the bank. In G.R. No. 81303, the liquidator is likewise
authorized to resist or defend suits instituted against the bank by debtors and
creditors of the bank and by other private persons. Similarly, in G.R. No. 81304, due
to the aforestated reasons, the Central Bank cannot be compelled to fulfill financial
transactions entered into by Banco Filipino when the operations of the latter were
suspended by reason of its closure. The Central Bank possesses those powers and
functions only as provided for in Sec. 29 of the Central Bank Act.
While We recognize the actual closure of Banco Filipino and the consequent legal
effects thereof on its operations, We cannot uphold the legality of its closure and thus,
find the petitions in G.R. Nos. 70054, 78767 and 78894 impressed with merit. We
hold that the closure and receivership of petitioner bank, which was ordered by
respondent Monetary Board on January 25, 1985, is null and void.
It is a well-recognized principle that administrative and discretionary functions may
not be interfered with by the courts. In general, courts have no supervising power
over the proceedings and actions of the administrative departments of the
government. This is generally true with respect to acts involving the exercise of
judgment or discretion, and findings of fact. But when there is a grave abuse of
discretion which is equivalent to a capricious and whimsical exercise of judgment or
where the power is exercised in an arbitrary or despotic manner, then there is a
justification for the courts to set aside the administrative determination reached (Lim,
Sr. v. Secretary of Agriculture and Natural Resources, L-26990, August 31, 1970, 34
SCRA 751)
The jurisdiction of this Court is called upon, once again, through these petitions, to
undertake the delicate task of ascertaining whether or not an administrative agency of
the government, like the Central Bank of the Philippines and the Monetary Board, has
committed grave abuse of discretion or has acted without or in excess of jurisdiction
in issuing the assailed order. Coupled with this task is the duty of this Court not only
to strike down acts which violate constitutional protections or to nullify administrative
decisions contrary to legal mandates but also to prevent acts in excess of authority or
jurisdiction, as well as to correct manifest abuses of discretion committed by the
officer or tribunal involved.
The law applicable in the determination of these issues is Section 29 of Republic Act
No. 265, as amended, also known as the Central Bank Act, which provides:
SEC. 29. Proceedings upon insolvency. ? Whenever, upon
examination by the head of the appropriate supervising or
examining department or his examiners or agents into the condition
of any bank or non-bank financial intermediary performing quasi-
banking functions, it shall be disclosed that the condition of the
same is one of insolvency, or that its continuance in business would
involve probable loss to its depositors or creditors, it shall be the
duty of the department head concerned forthwith, in writing, to
inform the Monetary Board of the facts. The Board may, upon
finding the statements of the department head to be true, forbid the
institution to do business in the Philippines and designate an official
of the Central Bank or a person of recognized competence in
banking or finance, as receiver to immediately take charge of its
assets and liabilities, as expeditiously as possible collect and
gather all the assets and administer the same for the benefit's of its
creditors, and represent the bank personally or through counsel as
he may retain in all actions or proceedings for or against the
9
institution, exercising all the powers necessary for these purposes
including, but not limited to, bringing and foreclosing mortgages in
the name of the bank or non-bank financial intermediary performing
quasi-banking functions.
The Monetary Board shall thereupon determine within sixty days
whether the institution may be reorganized or otherwise placed in
such a condition so that it may be permitted to resume business
with safety to its depositors and creditors and the general public
and shall prescribe the conditions under which such resumption of
business shall take place as well as the time for fulfillment of such
conditions. In such case, the expenses and fees in the collection
and administration of the assets of the institution shall be
determined by the Board and shall be paid to the Central Bank out
of the assets of such institution.
If the Monetary Board shall determine and confirm within the said
period that the bank or non-bank financial intermediary performing
quasi-banking functions is insolvent or cannot resume business
with safety to its depositors, creditors, and the general public, it
shall, if the public interest requires, order its liquidation, indicate the
manner of its liquidation and approve a liquidation plan which may,
when warranted, involve disposition of any or all assets in
consideration for the assumption of equivalent liabilities. The
liquidator designated as hereunder provided shall, by the Solicitor
General, file a petition in the regional trial court reciting the
proceedings which have been taken and praying the assistance of
the court in the liquidation of such institutions. The court shall have
jurisdiction in the same proceedings to assist in the adjudication of
the disputed claims against the bank or non-bank financial
intermediary performing quasi-banking functions and in the
enforcement of individual liabilities of the stockholders and do all
that is necessary to preserve the assets of such institutions and to
implement the liquidation plan approved by the Monetary Board.
The Monetary Board shall designate an official of the Central bank
or a person of recognized competence in banking or finance, as
liquidator who shall take over and continue the functions of the
receiver previously appointed by the Monetary Board under this
Section. The liquidator shall, with all convenient speed, convert the
assets of the banking institutions or non-bank financial intermediary
performing quasi-banking function to money or sell, assign or
otherwise dispose of the same to creditors and other parties for the
purpose of paying the debts of such institution and he may, in the
name of the bank or non-bank financial intermediary performing
quasi-banking functions and with the assistance of counsel as he
may retain, institute such actions as may be necessary in the
appropriate court to collect and recover accounts and assets of
such institution or defend any action filed against the institution:
Provided, However, That after having reasonably established all
claims against the institution, the liquidator may, with the approval
of the court, effect partial payments of such claims for assets of the
institution in accordance with their legal priority.
The assets of an institution under receivership or liquidation shall
be deemed in custodia legis in the hands of the receiver or
liquidator and shall from the moment of such receivership or
liquidation, be exempt from any order of garnishment, levy,
attachment, orexecution.
The provisions of any law to the contrary notwithstanding, the
actions of the Monetary Board under this Section, Section 28-A, an
the second paragraph of Section 34 of this Act shall be final an
executory, and can be set aside by a court only if there is convince
proof, after hearing, that the action is plainly arbitrary and made in
bad faith: Provided, That the same is raised in an appropriate
pleading filed by the stockholders of record representing the
majority of th capital stock within ten (10) days from the date the
receiver take charge of the assets and liabilities of the bank or non-
bank financial intermediary performing quasi-banking functions or,
in case of conservatorship or liquidation, within ten (10) days from
receipt of notice by the said majority stockholders of said bank or
non-bank financial intermediary of the order of its placement under
conservatorship o liquidation. No restraining order or injunction
shall be issued by an court enjoining the Central Bank from
implementing its actions under this Section and the second
paragraph of Section 34 of this Act in th absence of any convincing
proof that the action of the Monetary Board is plainly arbitrary and
made in bad faith and the petitioner or plaintiff files a bond,
executed in favor of the Central Bank, in an amount be fixed by the
court. The restraining order or injunction shall be refused or, if
granted, shall be dissolved upon filing by the Central Bank of a
bond, which shall be in the form of cash or Central Bank cashier's
check, in an amount twice the amount of the bond of th petitioner or
plaintiff conditioned that it will pay the damages which the petitioner
or plaintiff may suffer by the refusal or the dissolution of the
injunction. The provisions of Rule 58 of the New Rules of Court
insofar as they are applicable and not inconsistent with the
provision of this Section shall govern the issuance and dissolution
of the re straining order or injunction contemplated in this Section.
xxx xxx xxx
10
Based on the aforequoted provision, the Monetary Board may order the cessation of
operations of a bank in the Philippine and place it under receivership upon a finding of
insolvency or when its continuance in business would involve probable loss its
depositors or creditors. If the Monetary Board shall determine and confirm within sixty
(60) days that the bank is insolvent or can no longer resume business with safety to
its depositors, creditors and the general public, it shall, if public interest will be served,
order its liquidation.
Specifically, the basic question to be resolved in G.R. Nos. 70054, 78767 and 78894
is whether or not the Central Bank and the Monetary Board acted arbitrarily and in
bad faith in finding and thereafter concluding that petitioner bank is insolvent, and in
ordering its closure on January 25, 1985.
As We have stated in Our resolution dated August 3, 1989, the documents pertinent
to the resolution of these petitions are the Teodoro Report, Tiaoqui Report, and the
Valenzuela, Aurellano and Tiaoqui Report and the supporting documents made as
bases by the supporters of their conclusions contained in their respective reports. We
will focus Our study and discussion however on the Tiaoqui Report and the
Valenzuela, Aurellano and Tiaoqui Report. The former recommended the closure and
receivership of petitioner bank while the latter report made the recommendation to
eventually place the petitioner bank under liquidation. This Court shall likewise take
into consideration the findings contained in the reports of the two commissioners who
were appointed by this Court to hold the referral hearings, namely the report by Judge
Manuel Cosico submitted February 20, 1988 and the report submitted by Justice
Consuelo Santiago on January 28, 1991.
There is no question that under Section 29 of the Central Bank Act, the following are
the mandatory requirements to be complied with before a bank found to be insolvent
is ordered closed and forbidden to do business in the Philippines: Firstly, an
examination shall be conducted by the head of the appropriate supervising or
examining department or his examiners or agents into the condition of the bank;
secondly, it shall be disclosed in the examination that the condition of the bank is one
of insolvency, or that its continuance in business would involve probable loss to its
depositors or creditors; thirdly, the department head concerned shall inform the
Monetary Board in writing, of the facts; and lastly, the Monetary Board shall find the
statements of the department head to be true.
Anent the first requirement, the Tiaoqui report, submitted on January 23, 1985,
revealed that the finding of insolvency of petitioner was based on the partial list of
exceptions and findings on the regular examination of the bank as of July 31, 1984
conducted by the Supervision and Examination Sector II of the Central Bank of the
PhilippinesCentral Bank (p. 1, Tiaoqui Report).
On December 17, 1984, this list of exceptions and finding was submitted to the
petitioner bank (p. 6, Tiaoqui Report) This was attached to the letter dated December
17, 1984, of examiner-in-charge Dionisio Domingo of SES Department II of the
Central Bank to Teodoro Arcenas, president of petitione bank, which disclosed that
the examination of the petitioner bank as to its financial condition as of July 31, 1984
was not yet completed or finished on December 17, 1984 when the Central Bank
submitted the partial list of findings of examination to th petitioner bank. The letter
reads:
In connection with the regular examination of your institution a of
July 31, 1984, we are submitting herewith a partial list of our
exceptions/findings for your comments.
Please be informed that we have not yet officially terminated our
examination (tentatively scheduled last December 7, 1984) and
that we are still awaiting for the unsubmitted replies to our previous
letters requests. Moreover, other findings/ observations are still
being summarized including the classification of loans and other
risk assets. These shall be submitted to you in due time (p. 810,
Rollo, Vol. III; emphasis ours).
It is worthy to note that a conference was held on January 21, 1985 at the Central
Bank between the officials of the latter an of petitioner bank. What transpired and
what was agreed upon during the conference was explained in the Tiaoqui report.
... The discussion centered on the substantial exposure of the bank
to the various entities which would have a relationship with the
bank; the manner by which some bank funds were made indirectly
available to several entities within the group; and the unhealth
financial status of these firms in which the bank was additionally
exposed through new funds or refinancing accommodation
including accrued interest.
Queried in the impact of these clean loans, on the bank solvency
Mr. Dizon (BF Executive Vice President) intimated that, collectively
these corporations have large undeveloped real estate properties in
the suburbs which can be made answerable for the unsecured
loans a well as the Central Bank's credit accommodations. A formal
reply of the bank would still be forthcoming. (pp. 58-59, Rollo, Vol. I;
emphasis ours)
Clearly, Tiaoqui based his report on an incomplete examination of petitioner bank and
outrightly concluded therein that the latter's financial status was one of insolvency or
illiquidity. He arrived at the said conclusion from the following facts: that as of July 31,
1984, total capital accounts consisting of paid-in capital and other capital accounts
such as surplus, surplus reserves and undivided profits aggregated P351.8 million;
that capital adjustments, however, wiped out the capital accounts and placed the
11
bank with a capital deficiency amounting to P334.956 million; that the biggest
adjustment which contributed to the deficit is the provision for estimated losses on
accounts classified as doubtful and loss which was computed at P600.4 million
pursuant to the examination. This provision is also known as valuation reserves which
was set up or deducted against the capital accounts of the bank in arriving at the
latter's financial condition.
Tiaoqui however admits the insufficiency and unreliability of the findings of the
examiner as to the setting up of recommended valuation reserves from the assets of
petitioner bank. He stated:
The recommended valuation reserves as bases for determining the
financial status of the bank would need to be discussed with the
bank, consistent with standard examination procedure, for which
the bank would in turn reply. Also, the examination has not been
officially terminated. (p. 7. Tiaoqui report; p. 59, Rollo, Vol. I)
In his testimony in the second referral hearing before Justice Santiago, Tiaoqui
testified that on January 21, 1985, he met with officers of petitioner bank to discuss
the advanced findings and exceptions made by Mr. Dionisio Domingo which covered
70%-80% of the bank's loan portfolio; that at that meeting, Fortunato Dizon (BF's
Executive Vice President) said that as regards the unsecured loans granted to
various corporations, said corporations had large undeveloped real estate properties
which could be answerable for the said unsecured loans and that a reply from BF was
forthcoming, that he (Tiaoqui) however prepared his report despite the absence of
such reply; that he believed, as in fact it is stated in his report, that despite the
meeting on January 21, 1985, there was still a need to discuss the recommended
valuation reserves of petitioner bank and; that he however, did not wait anymore for a
discussion of the recommended valuation reserves and instead prepared his report
two days after January 21, 1985 (pp. 3313-3314, Rollo).
Records further show that the examination of petitioner bank was officially terminated
only when Central Bank Examination-charge Dionisio Domingo submitted his final
report of examination on March 4,1985.
It is evident from the foregoing circumstances that the examination contemplated in
Sec. 29 of the CB Act as a mandatory requirement was not completely and fully
complied with. Despite the existence of the partial list of findings in the examination of
the bank, there were still highly significant items to be weighed and determined such
as the matter of valuation reserves, before these can be considered in the financial
condition of the bank. It would be a drastic move to conclude prematurely that a bank
is insolvent if the basis for such conclusion is lacking and insufficient, especially if
doubt exists as to whether such bases or findings faithfully represent the real financial
status of the bank.
The actuation of the Monetary Board in closing petitioner bank on January 25, 1985
barely four days after a conference with the latter on the examiners' partial findings on
its financial position is also violative of what was provided in the CB Manual of
Examination Procedures. Said manual provides that only after the examination is
concluded, should a pre-closing conference led by the examiner-in-charge be held
with the officers/representatives of the institution on the findings/exception, and a
copy of the summary of the findings/violations should be furnished the institution
examined so that corrective action may be taken by them as soon as possible
(Manual of Examination Procedures, General Instruction, p. 14). It is hard to
understand how a period of four days after the conference could be a reasonable
opportunity for a bank to undertake a responsive and corrective action on the partial
list of findings of the examiner-in-charge.
We recognize the fact that it is the responsibility of the Central Bank of the Philippines
to administer the monetary, banking and credit system of the country and that its
powers and functions shall be exercised by the Monetary Board pursuant to Rep. Act
No. 265, known as the Central Bank Act. Consequently, the power and authority of
the Monetary Board to close banks and liquidate them thereafter when public interest
so requires is an exercise of the police power of the state. Police power, however,
may not be done arbitratrily or unreasonably and could be set aside if it is either
capricious, discriminatory, whimsical, arbitrary, unjust or is tantamount to a denial of
due process and equal protection clauses of the Constitution (Central Bank v. Court
of Appeals, Nos. L-50031-32, July 27, 1981, 106 SCRA 143).
In the instant case, the basic standards of substantial due process were not
observed. Time and again, We have held in several cases, that the procedure of
administrative tribunals must satisfy the fundamentals of fair play and that their
judgment should express a well-supported conclusion.
In the celebrated case of Ang Tibay v. Court of Industrial Relations, 69 Phil. 635, this
Court laid down several cardinal primary rights which must be respected in a
proceeding before an administrative body.
However, as to the requirement of notice and hearing, Sec. 29 of RA 265 does not
require a previous hearing before the Monetary Board implements the closure of a
bank, since its action is subject to judicial scrutiny as provided for under the same law
(Rural Bank of Bato v. IAC, G.R. No. 65642, October 15, 1984, Rural Bank v. Court of
Appeals, G.R. 61689, June 20, 1988,162 SCRA 288).
Notwithstanding the foregoing, administrative due process does not mean that the
other important principles may be dispensed with, namely: the decision of the
administrative body must have something to support itself and the evidence must be
substantial. Substantial evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion
(Ang Tibay vs. CIR, supra). Hence, where the decision is merely based upon pieces
12
of documentary evidence that are not sufficiently substantial and probative for the
purpose and conclusion they are presented, the standard of fairness mandated in the
due process clause is not met. In the case at bar, the conclusion arrived at by the
respondent Board that the petitioner bank is in an illiquid financial position on January
23, 1985, as to justify its closure on January 25, 1985 cannot be given weight and
finality as the report itself admits the inadequacy of its basis to support its conclusion.
The second requirement provided in Section 29, R.A. 265 before a bank may be
closed is that the examination should disclose that the condition of the bank is one of
insolvency.
As to the concept of whether the bank is solvent or not, the respondents contend that
under the Central Bank Manual of Examination Procedures, Central Bank examiners
must recommend valuation reserves, when warranted, to be set up or deducted
against the corresponding asset account to determine the bank's true condition or net
worth. In the case of loan accounts, to which practically all the questioned valuation
reserves refer, the manual provides that:
1. For doubtful loans, or loans the ultimate collection of which is doubtful and in which
a substantial loss is probable but not yet definitely ascertainable as to extent,
valuation reserves of fifty per cent (50%) of the accounts should be recommended to
be set up.
2. For loans classified as loss, or loans regarded by the examiner as absolutely
uncollectible or worthless, valuation reserves of one hundred percent (100%) of the
accounts should be recommended to be set up (p. 8, Objections to Santiago report).
The foregoing criteria used by respondents in determining the financial condition of
the bank is based on Section 5 of RA 337, known as the General Banking Act which
states:
Sec. 5. The following terms shall be held to be synonymous and
interchangeable:
... f. Unimpaired Capital and Surplus, "Combined capital accounts,"
and "Net worth," which terms shall mean for the purposes of this
Act, the total of the "unimpaired paid-in capital, surplus, and
undivided profits net of such valuation reserves as may be required
by the Central Bank."
There is no doubt that the Central Bank Act vests authority upon the Central Bank
and Monetary Board to take charge and administer the monetary and banking system
of the country and this authority includes the power to examine and determine the
financial condition of banks for purposes provided for by law, such as for the purpose
of closure on the ground of insolvency stated in Section 29 of the Central Bank Act.
But express grants of power to public officers should be subjected to a strict
interpretation, and will be construed as conferring those powers which are expressly
imposed or necessarily implied (Floyd Mechem, Treatise on the Law of Public Offices
and Officers, p. 335).
In this case, there can be no clearer explanation of the concept of insolvency than
what the law itself states. Sec. 29 of the Central Bank Act provides that insolvency
under the Act, shall be understood to mean that "the realizable assets of a bank or a
non-bank financial intermediary performing quasi-banking functions as determined by
the Central Bank are insufficient to meet its liabilities."
Hence, the contention of the Central Bank that a bank's true financial condition is
synonymous with the terms "unimpaired capital and surplus," "combined capital
accounts" and net worth after deducting valuation reserves from the capital, surplus
and unretained earnings, citing Sec. 5 of RA 337 is misplaced.
Firstly, it is clear from the law that a solvent bank is one in which its assets exceed its
liabilities. It is a basic accounting principle that assets are composed of liabilities and
capital. The term "assets" includes capital and surplus" (Exley v. Harris, 267 p. 970,
973, 126 Kan., 302). On the other hand, the term "capital" includes common and
preferred stock, surplus reserves, surplus and undivided profits. (Manual of
Examination Procedures, Report of Examination on Department of Commercial and
Savings Banks, p. 3-C). If valuation reserves would be deducted from these items,
the result would merely be the networth or the unimpaired capital and surplus of the
bank applying Sec. 5 of RA 337 but not the total financial condition of the bank.
Secondly, the statement of assets and liabilities is used in balance sheets. Banks use
statements of condition to reflect the amounts, nature and changes in the assets and
liabilities. The Central Bank Manual of Examination Procedures provides a format or
checklist of a statement of condition to be used by examiners as guide in the
examination of banks. The format enumerates the items which will compose the
assets and liabilities of a bank. Assets include cash and those due from banks, loans,
discounts and advances, fixed assets and other property owned or acquired and
other miscellaneous assets. The amount of loans, discounts and advances to be
stated in the statement of condition as provided for in the manual is computed after
deducting valuation reserves when deemed necessary. On the other hand, liabilities
are composed of demand deposits, time and savings deposits, cashier's, manager's
and certified checks, borrowings, due to head office, branches; and agencies, other
liabilities and deferred credits (Manual of Examination Procedure, p. 9). The amounts
stated in the balance sheets or statements of condition including the computation of
valuation reserves when justified, are based however, on the assumption that the
bank or company will continue in business indefinitely, and therefore, the networth
shown in the statement is in no sense an indication of the amount that might be
realized if the bank or company were to be liquidated immediately (Prentice Hall
13
Encyclopedic Dictionary of Business Finance, p. 48). Further, based on respondents'
submissions, the allowance for probable losses on loans and discounts represents
the amount set up against current operations to provide for possible losses arising
from non-collection of loans and advances, and this account is also referred to as
valuation reserve (p. 9, Objections to Santiago report). Clearly, the statement of
condition which contains a provision for recommended valuation reserves should not
be used as the ultimate basis to determine the solvency of an institution for the
purpose of termination of its operations.
Respondents acknowledge that under the said CB manual, CB examiners must
recommend valuation reserves, when warranted, to be set up against the
corresponding asset account (p. 8, Objections to Santiago report). Tiaoqui himself, as
author of the report recommending the closure of petitioner bank admits that the
valuation reserves should still be discussed with the petitioner bank in compliance
with standard examination procedure. Hence, for the Monetary Board to unilaterally
deduct an uncertain amount as valuation reserves from the assets of a bank and to
conclude therefrom without sufficient basis that the bank is insolvent, would be totally
unjust and unfair.
The test of insolvency laid down in Section 29 of the Central Bank Act is measured by
determining whether the realizable assets of a bank are leas than its liabilities. Hence,
a bank is solvent if the fair cash value of all its assets, realizable within a reasonable
time by a reasonable prudent person, would equal or exceed its total liabilities
exclusive of stock liability; but if such fair cash value so realizable is not sufficient to
pay such liabilities within a reasonable time, the bank is insolvent. (Gillian v. State,
194 N.E. 360, 363, 207 Ind. 661). Stated in other words, the insolvency of a bank
occurs when the actual cash market value of its assets is insufficient to pay its
liabilities, not considering capital stock and surplus which are not liabilities for such
purpose (Exley v. Harris, 267 p. 970, 973,126 Kan. 302; Alexander v. Llewellyn, Mo.
App., 70 S.W. 2n 115,117).
In arriving at the computation of realizable assets of petitioner bank, respondents
used its books which undoubtedly are not reflective of the actual cash or fair market
value of its assets. This is not the proper procedure contemplated in Sec. 29 of the
Central Bank Act. Even the CB Manual of Examination Procedures does not confine
examination of a bank solely with the determination of the books of the bank. The
latter is part of auditing which should not be confused with examination. Examination
appraises the soundness of the institution's assets, the quality and character of
management and determines the institution's compliance with laws, rules and
regulations. Audit is a detailed inspection of the institution's books, accounts,
vouchers, ledgers, etc. to determine the recording of all assets and liabilities. Hence,
examination concerns itself with review and appraisal, while audit concerns itself with
verification (CB Manual of Examination Procedures, General Instructions, p. 5). This
Court however, is not in the position to determine how much cash or market value
shall be assigned to each of the assets and liabilities of the bank to determine their
total realizable value. The proper determination of these matters by using the actual
cash value criteria belongs to the field of fact-finding expertise of the Central Bank
and the Monetary Board. Notwithstanding the fact that the figures arrived at by the
respondent Board as to assets and liabilities do not truly indicate their realizable value
as they were merely based on book value, We will however, take a look at the figures
presented by the Tiaoqui Report in concluding insolvency as of July 31, 1984 and at
the figures presented by the CB authorized deputy receiver and by the Valenzuela,
Aurellano and Tiaoqui Report which recommended the liquidation of the bank by
reason of insolvency as o January 25,1985.
The Tiaoqui report dated January 23, 1985, which was based on partial examination
findings on the bank's condition as of July 31, 1984, states that total liabilities of
P5,282.1 million exceeds total assets of P4,947.2 million after deducting from the
assets valuation reserves of P612.2 million. Since, as We have explained in our
previous discussion that valuation reserves can not be legally deducted as there was
no truthful and complete evaluation thereof as admitted by the Tiaoqui report itself,
then an adjustment of the figures win show that the liabilities of P5,282.1 million will
not exceed the total assets which will amount to P5,559.4 if the 612.2 million allotted
to valuation reserves will not be deducted from the assets. There can be no basis
therefore for both the conclusion of insolvency and for the decision of the respondent
Board to close petitioner bank and place it under receivership.
Concerning the financial position of the bank as of January 25, 1985, the date of the
closure of the bank, the consolidated statement of condition thereof as of the
aforesaid date shown in the Valenzuela, Aurellano and Tiaoqui report on the
receivership of petitioner bank, dated March 19, 1985, indicates that total liabilities of
4,540.84 million does not exceed the total assets of 4,981.53 million. Likewise, the
consolidated statement of condition of petitioner bank as of January 25, 1985
prepared by the Central Bank Authorized Deputy Receiver Artemio Cruz shows that
total assets amounting to P4,981,522,996.22 even exceeds total liabilities amounting
to P4,540,836,834.15. Based on the foregoing, there was no valid reason for the
Valenzuela, Aurellano and Tiaoqui report to finally recommend the liquidation of
petitioner bank instead of its rehabilitation.
We take note of the exhaustive study and findings of the Cosico report on the
petitioner bank's having engaged in unsafe, unsound and fraudulent banking
practices by the granting of huge unsecured loans to several subsidiaries and related
companies. We do not see, however, that this has any material bearing on the validity
of the closure. Section 34 of the RA 265, Central Bank Act empowers the Monetary
Board to take action under Section 29 of the Central Bank Act when a bank "persists
in carrying on its business in an unlawful or unsafe manner." There was no showing
whatsoever that the bank had persisted in committing unlawful banking practices and
that the respondent Board had attempted to take effective action on the bank's
alleged activities. During the period from July 27, 1984 up to January 25, 1985, when
petitioner bank was under conservatorship no official of the bank was ever
prosecuted, suspended or removed for any participation in unsafe and unsound
banking practices, and neither was the entire management of the bank replaced or
14
substituted. In fact, in her testimony during the second referral hearing, Carlota
Valenzuela, CB Deputy Governor, testified that the reason for petitioner bank's
closure was not unsound, unsafe and fraudulent banking practices but the alleged
insolvency position of the bank (TSN, August 3, 1990, p. 3316, Rollo, Vol. VIII).
Finally, another circumstance which point to the solvency of petitioner bank is the
granting by the Monetary Board in favor of the former a credit line in the amount of P3
billion along with the placing of petitioner bank under conservatorship by virtue of
M.B. Resolution No. 955 dated July 27, 1984. This paved the way for the reopening of
the bank on August 1, 1984 after a self-imposed bank holiday on July 23, 1984.
On emergency loans and advances, Section 90 of RA 265 provides two types of
emergency loans that can be granted by the Central Bank to a financially distressed
bank:
Sec. 90. ... In periods of emergency or of imminent financial panic
which directly threaten monetary and banking stability, the Central
Bank may grant banking institutions extraordinary advances
secured by any assets which are defined as acceptable by by a
concurrent vote of at least five members of the Monetary Board.
While such advances are outstanding, the debtor institution may
not expand the total volume of its loans or investments without the
prior authorization of the Monetary Board.
The Central Bank may, at its discretion, likewise grant advances to
banking institutions, even during normal periods, for the purpose of
assisting a bank in a precarious financial condition or under serious
financial pressures brought about by unforeseen events, or events
which, though foreseeable, could not be prevented by the bank
concerned. Provided, however, That the Monetary Board has
ascertained that the bank is not insolvent and has clearly realizable
assets to secure the advances. Provided, further, That a concurrent
vote of at least five members of the Monetary Board is obtained.
(Emphasis ours)
The first paragraph of the aforequoted provision contemplates a situation where the
whole banking community is confronted with financial and economic crisis giving rise
to serious and widespread confusion among the public, which may eventually
threaten and gravely prejudice the stability of the banking system. Here, the
emergency or financial confusion involves the whole banking community and not one
bank or institution only. The second situation on the other hand, provides for a
situation where the Central Bank grants a loan to a bank with uncertain financial
condition but not insolvent.
As alleged by the respondents, the following are the reasons of the Central Bank in
approving the resolution granting the P3 billion loan to petitioner bank and the latter's
reopening after a brief self-imposed banking holiday:
WHEREAS, the closure by Banco Filipino Savings and Mortgage
Bank of its Banking offices on its own initiative has worked serious
hardships on its depositors and has affected confidence levels in
the banking system resulting in a feeling of apprehension among
depositors and unnecessary deposit withdrawals;
WHEREAS, the Central Bank is charged with the function of
administering the banking system;
WHEREAS, the reopening of Banco Filipino would require
additional credit resources from the Central Bank as well as an
independent management acceptable to the Central Bank;
WHEREAS, it is the desire of the Central Bank to rapidly diffuse the
uncertainty that presently exists;
... (M.B. Min. No. 35 dated July 27, 1984 cited in Respondents'
Objections to Santiago Report, p. 26; p. 3387, Rollo, Vol. IX;
Emphasis ours).
A perusal of the foregoing "Whereas" clauses unmistakably show that the clear
reason for the decision to grant the emergency loan to petitioner bank was that the
latter was suffering from financial distress and severe bank "run" as a result of which
it closed on July 23, 1984 and that the release of the said amount is in accordance
with the Central Bank's full support to meet Banco Filipino's depositors' withdrawal
requirements (Excerpts of minutes of meeting on MB Min. No. 35, p. 25, Rollo, Vol.
IX). Nothing therein shows that an extraordinary emergency situation exists affecting
most banks, not only as regards petitioner bank. This Court thereby finds that the
grant of the said emergency loan was intended from the beginning to fall under the
second paragraph of Section 90 of the Central Bank Act, which could not have
occurred if the petitioner bank was not solvent. Where notwithstanding knowledge of
the irregularities and unsafe banking practices allegedly committed by the petitioner
bank, the Central Bank even granted financial support to the latter and placed it under
conservatorship, such actuation means that petitioner bank could still be saved from
its financial distress by adequate aid and management reform, which was required by
Central Bank's duty to maintain the stability of the banking system and the
preservation of public confidence in it (Ramos v. Central Bank, No. L-29352, October
4, 1971, 41 SCRA 565).
15
In view of the foregoing premises, We believe that the closure of the petitioner bank
was arbitrary and committed with grave abuse of discretion. Granting in gratia
argumenti that the closure was based on justified grounds to protect the public, the
fact that petitioner bank was suffering from serious financial problems should not
automatically lead to its liquidation. Section 29 of the Central Bank provides that a
closed bank may be reorganized or otherwise placed in such a condition that it may
be permitted to resume business with safety to its depositors, creditors and the
general public.
We are aware of the Central Bank's concern for the safety of Banco Filipino's
depositors as well as its creditors including itself which had granted substantial
financial assistance up to the time of the latter's closure. But there are alternatives to
permanent closure and liquidation to safeguard those interests as well as those of the
general public for the failure of Banco Filipino or any bank for that matter may be
viewed as an irreversible decline of the country's entire banking system and
ultimately, it may reflect on the Central Bank's own viability. For one thing, the Central
Bank and the Monetary Board should exercise strict supervision over Banco Filipino.
They should take all the necessary steps not violative of the laws that will fully secure
the repayment of the total financial assistance that the Central Bank had already
granted or would grant in the future.
ACCORDINGLY, decision is hereby rendered as follows:
1. The motion for reconsideration in G.R. Nos. 68878 and 81303, and the petitions in
G.R. Nos. 77255-58, 78766, 81304 and 90473 are DENIED;
2. The petitions in G.R. No. 70054, 78767 and 78894 are GRANTED and the assailed
order of the Central Bank and the Monetary Board dated January 25, 1985 is hereby
ANNULLED AND SET ASIDE. The Central Bank and the Monetary Board are ordered
to reorganize petitioner Banco Filipino Savings and Mortgage Bank and allow the
latter to resume business in the Philippines under the comptrollership of both the
Central Bank and the Monetary Board and under such conditions as may be
prescribed by the latter in connection with its reorganization until such time that
petitioner bank can continue in business with safety to its creditors, depositors and
the general public.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Cruz, Bidin and Regalado, JJ., concur.
Paras, Feliciano, Padilla, Davide, Jr. and Nocon, JJ., took no part.
Separate Opinions
MELENCIO-HERRERA, J., dissenting:
I join Mme. Justice Carolina G. Aquino in her dissent and vote to deny the prayer, in
G.R. No. 70054, to annul Monetary Board Resolution No. 75 placing Banco Filipino
(BF) under receivership.
Even assuming that the BF was not, as alleged, in a literal state of insolvency at the
time of the passage of said Resolution, there was a finding in the Teodoro report that,
based on that Bank's illiquidity, to have allowed it to continue in operation would have
meant probable loss to depositors and creditors. That is also a ground for placing the
bank under receivership, as a first step, pursuant to Section 29 of the Central Bank
Act (Rep. Act No. 265, as amended). The closure of BF, therefore, can not be said to
have been arbitrary or made in bad faith. There was sufficient justification,
considering its inability to meet the heavy withdrawals by its depositors and to pay its
liabilities as they fell due, to forbid the bank from further engaging in banking.
The matter of reopening, reorganization or rehabilitation of BF is not within the
competence of this Court to ordain but is better addressed to the Monetary Board and
the Central Bank considering the latter's enormous infusion of capital into BF to the
tune of approximately P3.5 Billion in total accommodations, after a thorough
assessment of whether or not BF is, indeed, possessed, as it stoutly contends, of
sufficient assets and capabilities with which to repay such huge indebtedness, and
can operate without loss to its many depositors and creditors.
GRIÑO-AQUINO, J., dissenting:
Although these nine (9) Banco Filipino (BF) cases have been consolidated under one
ponencia, all of them except one, raise issues unrelated to the receivership and
liquidation of said bank. In fact, two of these cases (G.R. No. 68878 and 81303) have
already been decided by this Court and are only awaiting the resolution of the
motions for reconsideration filed therein. Only G.R. No. 70054 "Banco Filipino
Savings and Mortgage Bank (BF) vs. the Monetary Board (MB), Central Bank of the
Philippines (CB), et al.," is an original action for mandamus and certiorari filed in this
Court by former officials of BF to annul the Monetary Board Resolution No. 75 dated
January 25, 1985 (ordering the closure of Banco Filipino [BF] and appointing Carlota
Valenzuela as receiver of the bank) on the ground that the resolution was issued
16
"without affording BF a hearing on the reports" on which the Monetary Board based
its decision to close the bank, hence, without "administrative due process.", The
prayer of the petition reads:
WHEREFORE, petitioner respectfully prays that a writ of
mandamus be issued commanding respondents immediately to
furnish it copies of the reports of examination of BF employed by
respondent Monetary Board to support its Resolution of January
25, 1985 and thereafter to afford it a hearing prior to any resolution
that may be issued under Section 29 of R.A. 265, meanwhile
annulling said Resolution of January 25, 1985 by writ of certiorari
as made without or in excess ofjurisdiction or with grave abuse of
discretion.
So as to expedite proceedings, petitioner prays that the
assessment of the damages respondents should pay it be deferred
and referred to commissioners.
Petitioner prays for such other remedy as the Court may deem just
and equitable in the premises.
Quezon City for Manila, February 28, 1985. (p. 8, Rollo I-)
and the prayer of the Supplement to Petition reads:
WHEREFORE, in addition to its prayer for mandamus and
certiorari contained in its original petition, petitioner respectfully
prays that Sections 28-A and 29 of the Central Bank charter (R.A.
265) including its amendatory Presidential Decrees Nos. 72, 1771,
1827 and 1937 be annulled as unconstitutional.
Quezon City for Manila, March 4, 1985. (p. 11-G, Rollo I.)
The other eight (8) cases merely involve transactions of BF with third persons and
certain "related" corporations which had defaulted on their loans and sought to
prohibit the extrajudicial foreclosure of the mortgages on their properties by the
receiver of BF. These eight (8) cases are:
1. G.R. No. 68878 "BF vs. Intermediate Appellate Court and Celestina Pahimutang"
involves the repossession by BF of a house and lot which the buyer (Pahimutang)
claimed to have completely paid for on the installment plan. The appellate court's
judgment for the buyer was reversed by this Court. The buyer's motion for
reconsideration is awaiting resolution by this Court;
2. G.R. Nos. 77255-58, "Top Management Programs Corporation and Pilar
Development Corporation vs. Court of appeals, et al." (CA-G.R. SP No. 07892) and
"Pilar Development Corporation vs. Executive Judge, RTC, Cavite" (CA-G.R. SP Nos.
0896264) is a consolidated petition for review of the Court of Appeals' joint decision
dismissing the petitions for prohibition in which the petitioners seek to prevent the
receiver/liquidator of BF from extrajudicially foreclosing the P4.8 million mortgage on
Top Management's properties and the P18-67 million mortgage on Pilar Development
properties. The Court of Appeals dismissed the petitions on October 30, 1986 on the
ground that "the functions of the liquidator, as receiver under Section 29 (R.A. 265),
include taking charge of the insolvent's assets and administering the same for the
benefit of its creditors and of bringing suits and foreclosing mortgages in the name of
the bank;"
3. G.R. No. 78766, "El Grande Corporation vs. Court of Appeals, et al.," is an appeal
from the Court of Appeals' decision in CA-G.R. SP No. 08809 dismissing El Grande's
petition for prohibition to prevent the foreclosure of BF's P8 million mortgage on El
Grande's properties;
4. G.R. No. 78894, "Banco Filipino Savings and Mortgage Bank vs. Court of Appeals,
et al." is an appeal of BFs old management (using the name of BF) from the decision
of the Court of Appeals in CA-G.R. SP No. 07503 entitled, "Central Bank, et al. vs.
Judge Zoilo Aguinaldo, et al" dismissing the complaint of "BF" to annul the
receivership, for no suit may be brought or defended in the name of the bank except
by its receiver;
5. G.R. No. 87867, "Metropolis Development Corporation vs. Court of Appeals"
(formerly AC-G.R. No. 07503, "Central Bank, et al. vs. Honorable Zoilo Aguinaldo, et
al.') is an appeal of the intervenor (Metropolis) from the same Court of Appeals'
decision subject of G.R. No. 78894, which also dismissed Metropolis' complaint in
intervention on the ground that a stockholder (Metropolis) may not bring suit in the
name of BF while the latter is under receivership, without the authority of the receiver;
6. G.R. No. 81303, "Pilar Development Corporation vs. Court of Appeals, et al." is an
appeal from the decision dated October 22, 1987 of the Court of Appeals in CA-G.R.
SP No. 12368, "Pilar Development Corporation, et al. vs. Honorable Manuel Cosico,
et al.," dismissing the petition for certiorari against Judge Manuel Cosico, Br. 136,
RTC, Makati, who dismissed the complaint filed by Pilar Development Corporation
against BF, for specific performance of certain developer contracts. An answer filed by
Norberto Quisumbing and Associates, as BF's supposed counsel, virtually confessed
judgment in favor of Pilar Development. On motion of the receiver, the answer was
expunged and the complaint was dismissed. On a petition for certiorari in this Court,
we held that: "As liquidator of BF by virtue of a valid appointment from the Central
Bank, private respondent Carlota Valenzuela has the authority to direct the operation
of the bank in substitution of the former management, which authority includes the
retainer of counsel to represent it in bringing or resisting suits in connection with such
17
liquidation and, in the case at bar, to take the proper steps to prevent collusion, to the
prejudice of the legitimate creditors, between BF and the petitioners herein which
appear to be owned and controlled by the same interest controlling BF" (p. 49, Rollo).
The petitioners' motion for reconsideration of that decision is pending resolution.
7. G.R. No. 81304, "BF Homes Development Corporation vs. Court of Appeals, et al."
is an appeal from the decision dated November 4, 1987 of the Court of Appeals in
CA-G.R. CV No. 08565 affirming the trial court's order dismissing BF Homes' action to
compel the Central Bank to restore the financing facilities of BF, because the plaintiff
(BF Homes) has no cause of action against the CB.
8. G.R. No. 90473, "El Grande Development Corporation vs. Court of Appeals, et al.,"
is a petition to review the decision dated June 6, 1989 in CA-G.R. SP No. 08676
dismissing El Grande's petition for prohibition to stop foreclosure proceedings against
it by the receiver of BF.
As previously stated, G.R. No. 70054 "BF vs. Monetary Board, et al.," is an original
special civil action for certiorari and mandamus filed in this Court by the old
management of BF, through their counsel, N.J. Quisumbing & Associates, using the
name of the bank and praying for the annulment of MB Resolution No. 75 which
ordered the closure of BF and placed it under receivership. It is a "forum-shopping"
case because it was filed here on February 28, 1985 three weeks after they had filed
on February 2, 1985 Civil Case No. 9675 "Banco Filipino vs. Monetary Board, et al."
in the Regional Trial Court of Makati, Br. 143 (presided over by Judge Zoilo
Aguinaldo) for the same purpose of securing a declaration of the nullity of MB
Resolution No. 75 dated January 25, 1985.
On August 25, 1985, this Court ordered the transfer and consolidation of Civil Case
No. 9676 (to annul the receivership) from Br. 143 to Br. 136 (Judge Manuel Cosico) of
the Makati Regional Trial Court where Civil Case No. 8108 (to annul the
conservatorship) and Civil Case No. 10183 (to annul the liquidation) of BF were and
are still pending. All these three (3) cases were archived on June 30, 1988 by Judge
Cosico pending the resolution of G.R. No. 70054 by this Court.
Because of my previous participation, as a former member of the Court of Appeals, in
the disposition of AC-G.R. No. 02617 (now G.R. No. 68878) and AC-G.R. SP No.
07503 (now G.R. Nos. 78767 and 78894), I am taking no part in G.R. Nos. 68878,
78767 and 78894. It may be mentioned in this connection that neither in AC-G.R. SP
No. 02617, nor in AC-G.R. SP No. 07503, did the Court of Appeals rule on the
constitutionality of Sections 28-A and 29 of Republic Act 265 (Central Bank Act), as
amended, and the validity of MB Resolution No. 75, for those issues were not raised
in the Court of Appeals.
I concur with the ponencia insofar as it denies the motion for reconsideration in G.R.
No. 81303, and dismisses the petitions for review in G.R. Nos. 77255-58, 78766,
81304, and 90473.
I respectfully dissent from the majority opinion in G.R. No. 70054 annulling and
setting aside MB Resolution No. 75 and ordering the respondents, Central Bank of
the Philippines and the Monetary Board ?
to reorganize petitioner Banco Filipino Savings and Mortgage Bank,
and allow the latter to resume business in the Philippines under the
comptrollership of both the Central Bank and the Monetary Board
and under such conditions as may be prescribed by the latter until
such time that petitioner bank can continue in business with safety
to its creditors, depositors and the general public.
for I believe that this Court has neither the authority nor the competence to determine
whether or not, and under what conditions, BF should be reorganized and reopened.
That decision should be made by the Central Bank and the Monetary Board, not by
this Court.
All that we may determine in this case is whether the actions of the Central Bank and
the Monetary Board in closing BF and placing it under receivership were "plainly
arbitrary and made in bad faith.
Section 29 of Republic Act No. 265 provides:
Section 29. Proceedings upon insolvency. ? Whenever, upon
examination by the head of the appropriate supervising and
examining department or his examiners or agents into the condition
of any banking institution, it shall be disclosed that the condition of
the same is one of insolvency, or that its continuance in business
would involve probable loss to its depositors or creditors, it shall be
the duty of the department head concerned forthwith, in writing, to
inform the Monetary Board of the facts, and the Board may, upon
finding the statements of the department head to be true, forbid the
institution to do business in the Philippines and shall designate an
official of the Central Bank as receiver to immediately take charge
of its assets and liabilities, as expeditiously as possible collect and
gather all the assets and administer the same for the benefit of its
creditors, exercising all the powers necessary for these purposes
including, but not limited to, bringing suits and foreclosing
mortgages in the name of the banking institution.
18
The Monetary Board shall thereupon determine within sixty days
whether the institution may be reorganized or otherwise placed in
such a condition so that it may be permitted to resume business
with safety to its depositors and creditors and the general public
and shall prescribe the conditions under which such resumption of
business shall take place as well as the time for fulfillment of such
conditions. In such case, the expenses and fees in the collection
and administration of the assets of the institution shall be
determined by the Board and shall be paid to the Central Bank out
of the assets of such banking institution.
If the Monetary Board shall determine and confirm within the said
period that the banking institution is insolvent or cannot resume
business with safety to its depositors, creditors and the general
public, it shall, if the public interest requires, order its liquidation,
indicate the manner of its liquidation and approve a liquidation plan.
The Central Bank shall, by the Solicitor General, file a petition in the
Court of First Instance, reciting the proceedings which have been
taken and praying the assistance of the court in the liquidation of
the banking institutions. The court shall have jurisdiction in the
same proceedings to adjudicate disputed claims against the bank
and enforce individual liabilities of the stockholders and do all that
is necessary to preserve the assets of the banking institution and to
implement the liquidation plan approved by the Monetary Board.
The Monetary Board shall designate an official of the Central Bank
as liquidator who shall take over the functions of the receiver
previously appointed by the Monetary Board under this section. The
liquidator shall, with all convenient speed, convert the assets of the
banking institution to money or sell, assign or otherwise dispose of
the same to creditors and other parties for the purpose of paying
the debts of such bank and he may, in the name of the banking
institution, institute such actions as may be necessary in the
appropriate court to collect and recover accounts and assets of the
banking institution.
The provisions of any law to the contrary notwithstanding, the
actions of the Monetary Board under this section and the second
paragraph of Section 34 of this Act shall be final and executory, and
can be set aside by the court only if there is convincing proof that
theaction is plainly arbitrary and made in bad faith. No restraining
order or injunction shall be issued by the court enjoining the Central
Bank from implementing its actions under this section and the
second paragraph of Section 34 of this Act, unless there is
convincing proof that the action of the Monetary Board is plainly
arbitrary and made in bad faith and the petitioner or plaintiff files
with the clerk or judge of the court in which the action is pending a
bond executed in favor of the Central Bank, in an amount to be
fixed by the court. The restraining order or injunction shall be
refused or, if granted, shall be dissolved upon filing by the Central
Bank of a bond, which shall be in the form of cash or Central Bank
cashier's check, in an amount twice the amount of the bond of the
petitioner or plaintiff, conditioned that it will paythe which the
petitioner or plaintiff may suffer by the refusalor the dissolution of
the injunction. The provisions of Rule 58 of the new Rules of Court
insofar as they are applicable and not inconsistent with the
provisions of this section shall govern the issuance and dissolution
of the restraining order or injunction contemplated in this section.
Insolvency, under this Act, shall be understood to mean the inability
of a banking institution to pay its liabilities as they fall due in the
usual and ordinary course of business, provided, however, that this
shall not include the inability to pay of an otherwise non-insolvent
bank caused by extra-ordinary demands induced by financial panic
commonly evidenced by a run on the banks in the banking
community.
The determinative factor in the closure, receivership, and liquidation of a bank is the
finding, upon examination by the SES of the Central Bank, that its condition "is one of
insolvency, or that its continuance in business would involve probable loss to its
depositors and creditors." (Sec. 29, R.A. 265.) It should be pointed out that insolvency
is not the only statutory ground for the closure of a bank. The other ground is when
"its continuance in business would involve probable loss to its depositors and
creditors.
Was BF insolvent i.e., unable to pay its liabilities as they fell due in the usual and
ordinary course of business, on and for some time before January 25, 1985 when the
Monetary Board issued Resolution No. 75 closing the bank and placing it under
receivership? Would its continued operation involve probable loss to its depositors
and creditors?
The answer to both questions is yes. Both the conservator Gilberts Teodoro and the
head of the SES (Supervision and Examination Sector) Ramon V. Tiaoqui opined that
BF's continuance in business would cause probable loss to depositors and creditors.
Tiaoqui further categorically found that BF was insolvent. Why was this so?
The Teodoro and Tiaoqui reports as well as the report of the receivers, Carlota
Valenzuela, Arnulfo B. Aurellano and Ramon V. Tiaoqui, showed that since the end of
November 1983 BF had already been incurring "chronic reserve deficiencies' and
experiencing severe liquidity problems. So much so, that it had become "a substantial
borrower in the call loans market" and in June 1984 it obtained a P30 million
emergency loan from the Central Bank. (p. 2, Receiver's Report.) Additional
19
emergencyt loans (a total of P119.7 millions) were extended by the Central Bank to
BF that month (MB Res. No. 839 dated June 29,1984). On July 12, 1984, BFs
chairman, Anthony Aguirre, offered to "turn over the administration of the affairs of the
bank" to the Central Bank (Aguirre's letter to Governor Jose Fernandez, Annex 7 of
Manifestation dated May 3,1991). On July 23,1984, unable to meet heavy deposit
withdrawals, BF's management motu proprio, without obtaining the conformity of the
Central Bank, closed the bank and declared a bank holiday. On July 27, 1984, the
CB, responding to BFs pleas for additional financial assistance, granted BF a P3
billion credit line (MB Res. No. 934 of July 27, 1984) to enable it to reopen and
resume business on August 1, 1984. P2.3601 billions of the credit line were availed of
by the end of 1984 exclusive of an overdraft of P932.4 millions (p. 2, Tiaoqui Report).
Total accommodations granted to BF amounted to P3.4122 billions (p. 19, Cosico
Report).
Presumably to assure that the financial assistance would be properly used, the MB
appointed Basilio Estanislao as conservator of the bank. A conservatorship team of
78 examiners and accountants was assigned at the bank to keep track of its activities
and ascertain its financial condition (p. 8, Tiaoqui Report).
Estanislao resigned after two weeks for health reasons. He was succeeded by
Gilberto Teodoro as conservator in August, 1984 up to January 8, 1985.
Besides the conservatorship team, Teodoro hired financial consultants Messrs. Tirso
G. Santillan, Jr. and Plorido P. Casuela to make an analysis of BF's financial
condition. Teodoro also engaged the accounting firm of Sycip, Gorres, Velayo and
Company to make an asset evaluation. The Philippine Appraisal Company (PAC)
appraised BFs real estate properties, acquired assets, and collaterals held. On
January 9, 1985, Teodoro submitted his Report. Three weeks later, on January 23,
1985, Tiaoqui also submitted his Report. Both reports showedthat, in violation of
Section 37 of the General Banking Act (R.A.337): 2
1. BF had been continually deficient in liquidity
reserves (Teodoro Report). The bank had been
experiencing a severe drop in liquidity levels. The
ratio of liquid assets to deposits and borrowings
plunged from about 20% at end-1983, to about
8.6% by end-May 1984, much below the statutory
requirements of 24% for demand
deposits/deposit substitutes and 14% for savings
and time deposits. (p. 2, Tiaoqui Report.)
2. Deficiencies in average daily legal reserves
rose from P63.0 million during the week of
November 21-25, 1983 to a high of P435.9
million during the week of June 11-15, 1984 (pp.
2-3, Tiaoqui Report). Accumulated penalties on
reserve deficiencies amounted to P37.4 million
by July 31, and rose to P48 million by the end of
1984. (Tiaoqui Report.)
3. Deposit levels, which were at P3,845 million at
end-May l984 (its last "normal" month), dropped
to P935 million at the end of November 1984 or a
loss of P2,910 million. This represented an
average monthly loss of P485 million vs. an
average monthly gain of P26 million during the
first 5 months of 1984. (pp. 2-3, Tiaoqui Report.)
4. Deposits had declined at the rate of P20
million during the month of December 1984, but
expenses of about P17 million per month were
required to maintain the bank's operation. (p. 6,
Teodoro Report.)
5. Based on the projected outlook, the Bank's
average yield on assets of 16.3% p.a., was
insufficient to meet the average cost of funds of
19.5% p.a. and operating expenses of 4.8% p.a.
(p. 5 Teodoro Report.)
6. An imprudently large proportion of assets were
locked into long-term applications. (Teodoro
Report.)
7. BF overextended itself in lending to the real
estate industry, committing as much as 52% of its
peso deposits to its affiliates or "related accounts"
to which it continued lending even when it was
already suffering from liquidity stresses. (Teodoro
Report.) This was done in violation of Section 38
of the General Banking Act (R.A. 337). 3
8. During the period of marked decline in liquidity
levels the loan portfolio grew by P417.3 million in
the first five months of 1984 ? and by another
P105.l million in the next two months. (pp. 2-3,
Tiaoqui Report.)
20
9. The loan portfolio stood at P3.679 billion at the details submitted by the bank
end of July 1984, 56.2% of it channeled to were insufficient;
companies whose stockholders, directors and
officers were related to the officers, directors, and (c) While P674 million in loans
some stockholders of BF. (p. 8, Tiaoqui Report.) were supposedly guaranteed
Here again BF violated the General Banking Act by the Home Financing
(R.A. 337). 4 Corporation (HFIC), the latter
confirmed only P427 million.
10. Some of the loans were used to acquire P247 million in loans were not
preferred stocks of BF. Between September 17, guaranteed by HFC. (Teodoro
1983 and February 10, 1984, P49.9 million of Report.)
preferred non-convertible stocks were issued.
About 85% or P42.4 million was paid out of the (d) Per SGV's report, loans
proceeds of loans to stockholders/ borrowers with totalling P1.882 million
relationship to the bank (Annex D). Around P18.8 including accrued interest,
million were issued in the name of an entity other were secured by collateral
than the purchaser of the stocks. (Tiaoqui worth only Pl.54 billion. Hence,
Report.) BFs unsecured exposure
amounted to P586.2 million. BF
11. Loans amounting to some P69.3 million were Homes, Inc., a related
granted simply to pay-off old loans including company which has filed with
accrued interest, as an accommodation for the the SEC a petition for
direct maturing loans of some firms and as a way suspension of payments, owes
of paying-off loans of other borrower firms which P502 million to BF.
have their own credit lines with the bank. These
helped to make otherwise delinquent loans 13. BF had been suffering heavy losses. ?
appear "current" and deceptively "improved" the
quality of the loan portfolio. (Tiaoqui Report.)
a) For the eleven (11) months
ended November 30, 1984, the
12. Examination of the collaterals for the loan estimated net loss was P372.6
accounts of 63 major borrowers and 32 other Million;
selected borrowers as of July 31, 1984, showed
that:
b) For the twelve (12) months
from November 1984, the
(a) 2,658 TCT's which BF projected net loss would be
evaluated to be worth P1,487 P390.7 Million and would
million were appraised by PAC continue unabated; (p. 2,
to be worth only P1,196 million, Teodoro Report)
hence, deficient by P291
million.
c) Around 71.7% of the total
accommodations of P2.0677
(b) Other properties billions to the related/linked
(collaterals) supposedly worth entities were adversely
P711 million could not be classified. Close to 33.7% or
evaluated by PAC because the P697.1 millions were clean
21
 loans or against PNs
(promissory notes) of these
entities. Of the latter, 52.6%
were classified as loss." (P. 5,
Tiaoqui Report.)
d) The bank's financial
condition as of date of
examination, after setting up
the additional valuation
reserves of P612.2 millions and
accumulated net loss of P48.2
millions, indicates one of
insolvency. Total liabilities of
P5,282.1 million exceeds total
assets of P4,947.2 million by
6.8%. Total capital account of
P334.9 million) is deficient by
P322.7 million against the
minimum capital required of
P657.6 million (Annex F).
Capital to risk assets ratio is
negative 10.38%.
e) Total loans and investment
portfolio amounted to P3,914.3
millions (gross), of which
P194.0 millions or 5.0% were
past due and P1,657.1 millions
or 42.3% were adversely
classified (Substandard ?
P1,011.4 millions; Doubtful ?
P274.6 millions and Loss ?
P371.1 millions). Accounts
adversely classified included
unmatured loan of Pl,482.0
million to entities related with
each other and to the bank,
several of which showed
distressed conditions. (p. 7,
Tiaoqui Report.)
Teodoro's conclusion was that "the continuance of the bank in business would involve
probable loss to its depositors and creditors." He recommended "that the Monetary
Board take a more effective and responsible action to protect the depositors and
creditors ... in the light of the bank's worsening condition." (p. 5, Teodoro Report.)
On January 23, 1985, Tiaoqui submitted his report to the Monetary Board, Like
Teodoro, Tiaoqui believed that the principal cause of the bank's failure was that in
violation of the General Banking Law and CB rules and regulations, BF's major
stockholders, directors and officers, through their "related" companies: (i.e.
companies owned or controlled by them of their relatives) had been "borrowing" huge
chunks of the money of the depositors. His Conclusion and Recommendations were:
The Conservator, in his report to the Monetary Board dated January
8, 1985, has stated that the continuance of the bank in business
would involve probable loss to its depositors and creditors. It has
recommended that a more effective action be taken to protect
depositors and creditors.
The examination findings as of July 31, 1984 as shown earlier,
indicate one of insolvency and illiquidity and further confirms the
above conclusion of the Conservator.
All the foregoing provides sufficient justification for forbidding the
bank from further engaging in banking.
Foregoing considered, the following are recommended:
1. Forbid the Banco Filipino
Savings & Mortgage Bank to
do business in the Philippines
effective the beginning of office
on January, 1985, pursuant to
Sec. 29 of R.A. No. 265, as
amended;
2. Designate the Head of the
Conservator Team at the bank,
as Receiver of Banco Filipino
Savings & Mortgage Bank, to
immediately take charge of the
assets and liabilities, as
expeditiously as possible
collect and gather all the
assets and administer the
same for the benefit of all the
creditors, and exercise all the
powers necessary for these
purposes including but not
limited to bringing suits and
22
 foreclosing mortgages in the
name of the bank.
3. The Board of directors and
the principal officers from
Senior Vice President, as listed
in the attached Annex "A" be
included in the watchlist of the
Supervision and Examination
Sector until such time that they
shall have cleared themselves.
4. Refer to the Central Banles
Legal Department and Office of
Special Investigation the report
on the findings on Banco
Filipino for investigation and
possible prosecution of
directors, officers and
employees for activities which
led to its insolvent position."
(pp. 9-10, Tiaoqui Report.)
On January 25, 1985 or two days after the submission of Tiaoqui's Report, and three
weeks after it received Teodoro's Report, the Monetary Board, then composed of:
Chairman: Jose B. Fernandez, Jr.
CB Governor
Members:
1. Cesar E.A. Virata, Prime Minister & powers necessary for these
Concurrently Minister of Finance
2. Roberto V. Ongpin, Minister of Trade &
Industry & Chairman of Board of Investment
3. Vicente B. Valdepeñas, Jr., Minister of
Economic Planning & Director General of NEDA
4. Cesar A. Buenaventura, President of Filipinas
Shell Petroleum Corp. (p. 37, Annual Report
1985)
issued Resolution No. 75 closing BF and placing it under receivership. The MB
Resolution reads as follows:
After considering the report dated January 8, 1985 of the
Conservator for Banco Filipino Savings and Mortgage Bank that the
continuance in business of the bank would involve probable loss to
its depositors and creditors, and after discussing and finding to be
true the statements of the Special Assistant to the Governor and
Head, Supervision and Examination Sector (SES) Department II, as
recited in his memorandum dated January 23, 1985. that the Banco
Filipino Savings and Mortgage Bank is insolvent and that its
continuance in business would involve probable loss to its
depositors and creditors, and in pursuance of Section 29 of R.A.
No. 265, as amended, the Board decided:
1. To forbid Banco Filipino
Savings and Mortgage Bank
and all its branches to do
business in the Philippines;
2. To designate Mrs. Carlota P.
Valenzuela, Deputy Governor,
as Receiver who is hereby
directly vested with jurisdiction
and authority to immediately
take charge of the bank's
assets and liabilities, and as
expeditiously as possible
collect and gather all the
assets and administer the
same for the benefit of its
creditors, exercising all the-
purposes including, but not
limited to, bringing suits and
foreclosing mortgages in the
name of the bank;
3. To designate Mr. Arnulfo B.
Aurellano, Special Assistant to
the Governor, and Mr. Ramon
V. Tiaoqui, Special Assistant to
the Governor and Head,
Supervision and Examination
Sector Department II. as
23
 Deputy Receivers who are
likewise hereby directly vested
with jurisdiction and authority to
do all things necessary or
proper to carry out the
functions entrusted to them by
the Receiver and otherwise to
assist the Receiver in carrying
out the functions vested in the
Receiver by law or Monetary
Board resolutions;
4. To direct and authorize
Management to do all other
things and carry out all other
measures necessary or proper
to implement this Resolution
and to safeguard the interests
of depositors/credition and the
general public; and
5. In consequence of the
foregoing, to terminate the
conservatorship over Banco
Filipino Savings and Mortgage
Bank. (pp. 126-127, Rollo I.)
On March 19,1985, the receiver, Carlota Valenzuela, and the deputy receivers,
Arnulfo B. Aurellano and Ramon V. Tiaoqui, submitted a report to the Monetary Board
as required in Section 29, 2nd paragraph of R.A. 265 which provides that within sixty
(60) days from date of the receivership, the Monetary Board shall determine whether
the bank may be reorganized and permitted to resume business, or be liquidated. The
receivers recommended that BF be placed under litigation. For, among other things,
they found that:
1. BF had been suffering a capital deficiency of P336.5 million as of July 31, 1984
(pp. 2 and 4, Receivers' Report).
2. The bank's weekly reserve deficiencies averaged P146.67 million from November
25, 1983 up to March 16, 1984, rising to a peak of P338.09 million until July 27, 1984.
Its reserve deficiencies against deposits and deposit substitutes began on the week
ending June 15, 1984 up to December 7, 1984, with average daily reserve
deficiencies of P2.98 million.
3. Estimated losses or "unhooked valuation reserves" for loans to entities with
relationships to certain stockholder/directors and officers of the bank amounted to
P600.5 million. Combined with other adjustments in the amount of P73.2 million, they
will entirely wipe out the bank's entire capital account and leave a capital deficiency of
P336.5 million. The bank was already insolvent on July 31, 1984. The capital
deficiency increased to P908.4 million as of January 26, 1985 on account of
unhooked penalties for deficiencies in legal reserves (P49.07 million), unhooked
interest on overdrawings, emergency advance of P569.49 million from Central Bank,
and additional valuation reserves of P124.5 million. (pp. 3-4, Receivers' Report.)
The Receivers further noted that ?
After BF was closed as of January 25, 1985, there were no
collections from loans granted to firms related to each other and to
BF classified as "doubtful" or "loss," there were no substantial
improvements on other loans classified "doubtful"or "loss;" there
was no further increase in the value of assets owned/acquired
supported by new appraisals and there was no infusion of
additional capital such that the estimated realizable assets of BF
remained at P3,909.23, (millions) while the total liabilities amounted
to P5,159.44 (millions). Thus, BF remains insolvent with estimated
deficiency to creditors of Pl,250.21 (millions).
Moreover, there were no efforts on the part of the stockholders of
the bank to improve its financial condition and the possibility of
rehabilitation has become more remote. (P. 8, Receivers' Report.)
In the light of the results of the examination of BF by the Teodoro and Tiaoqui teams, I
do not find that the CB's Resolution No. 75 ordering BF to cease banking operations
and placing it under receivership was "plainly arbitrary and made in bad faith." The
receivership was justified because BF was insolvent and its continuance in business
would cause loss to its depositors and creditors. Insolvency, as defined in Rep. Act
265, means 'the inability of a banking institution to pay its liabilities as they fall due in
the usual and ordinary course of business. Since June 1984, BF had been unable to
meet the heavy cash withdrawals of its depositors and pay its liabilities to its creditors,
the biggest of them being the Central Bank, hence, the Monetary Board correctly
found its condition to be one of insolvency.
All the discussion in the Santiago Report concerning the bank's assets and liabilities
as determinants of BF's solvency or insolvency is irrelevant and inconsequential, for
under Section 29 of Rep. Act. 265, a bank's insolvency is not determined by its
excess of liabilities over assets, but by its "inability to pay its liabilities as they fall due
in the ordinary course of business" and it was abundantly shown that BF was unable
to pay its liabilities to depositors for over a six-month-period before it was placed
under receivership.
24
Even if assets and liabilities were to be factored into a formula for determining
whether or not BF was already insolvent on or before January 25, 1985, the result
would be no different. The bank's assets as of the end of 1984 amounted to P4.891
billions (not P6 billions) according to the Report signed and submitted to the CB by
BF's own president, and its total liabilities were P4.478 billions (p. 58, Cosico Report).
While Aguirre's Report showed BF ahead with a net worth of P412.961 millions, said
report did not make any provision for estimated valuation reserves amounting to
P600.5 millions, (50% of face value of doubtful loans and 100% of face value of loss
accounts) which BF had granted to its related/linked companies. The estimated
valuation reserves of P600.5 millions plus BF's admitted liabilities of P4.478 billions,
put together, would wipe out BFs realizable assets of P4.891 billions and confirm its
insolvent condition to the tune of P187.538 millions.
BF's and Judge (now CA Justice) Consuelo Y. Santiago's argument that valuation
reserves should not be considered because the matter was not discussed by Tiaoqui
with BF officials is not well taken for:
(1) The records of the defaulting debtors were in the possession of BF.
(2) The "adversely classified" loans were in fact included in the List of Exceptions and
Findings (of irregularities and violations of laws and CB rules and regulations)
prepared by the SES, a copy of which was furnished BF on December 1 7, 1984;
(3) A conference on the matter washeld on January 2l, 1985 with senior officials of BF
headed by EVP F. Dizon,. (pp. 14-15, Cosico Report.) BF did not formally protest
against the CBs estimate of valuation reserves. The CB could not wait forever for BF
to respond for the CB had to act with reasonable promptness to protect the depositors
and creditors of BF because the bank continued to operate.
(4) Subsequent events proved correct the SES classification of the loan accounts as
"doubtful" or "loss' because as of January 25, 1985 none of the loans, except three,
had been paid either partially or in full, even if they had already matured (p. 53,
Cosico Report).
The recommended provision for valuation reserves of P600.5 millions for "doubtful"
and "loss" accounts was a proper factor to consider in the capital adjustments of BF
and was in accordance with accounting rules. For, if the uncollectible loan accounts
would be entered in the assets column as "receivables," without a corresponding
entry in the liabilities column for estimated losses or valuation reserves arising from
their uncollectability, the result would be a gravely distorted picture of the financial
condition of BF.
BF's strange argument that it was not insolvent for otherwise the CB would not have
given it financial assistance does not merit serious consideration for precisely BF
needed financial assistance because it was insolvent.
Tiaoqui's admission that the examination of BF had "not yet been officially terminated"
when he submitted his report on January 23, 1985 did not make the action of the
Monetary Board of closing the bank and appointing receivers for it, 'plainly arbitrary
and in bad faith." For what had been examined by the SES was more than enough to
warrant a finding that the bank was "insolvent and could not continue in business
without probable loss to its depositors or creditors," and what had not been examined
was negligible and would not have materially altered the result. In any event, the
official termination of the examination with the submission by the Chief Examiner of
his report to the Monetary Board in March 1985, did not contradict, but in fact
confirmed, the findings in the Tiaoqui Report.
The responsibility of administering the Philippine monetary and banking systems is
vested by law in the Central Bank whose duty it is to use the powers granted to it
under the law to achieve the objective, among others, of maintaining monetary
stability in the country (Sec. 2, Rep. Act 265). I do not think it would be proper and
advisable for this Court to interfere with the CB's exercise of its prerogative and duty
to discipline banks which have persistently engaged in illegal, unsafe, unsound and
fraudulent banking practices causing tremendous losses and unimaginable anxiety
and prejudice to depositors and creditors and generating widespread distrust and loss
of confidence in the banking system. The damage to the banking system and to the
depositing public is bigger when the bank, like Banco Filipino, is big. With 89
branches nationwide, 46 of them in Metro Manila alone, pumping the hard-earned
savings of 3 million depositors into the bank, BF had no reason to go bankrupt if it
were properly managed. The Central Bank had to infuse almost P3.5 billions into the
bank in its endeavor to save it. But even this financial assistance was misused, for
instead of satisfying the depositors' demands for the withdrawal of their money, BF
channeled and diverted a substantial portion of the finds into the coffers of its
related/linked companies. Up to this time, its officers, directors and major
stockholders have neither repaid the Central Bank's P3.6 billion financial assistance,
nor put up adequate collaterals therefor, nor submitted a credible plan for the
rehabilitation of the bank. What authority has this Court to require the Central Bank to
reopen and rehabilitate the bank, and in effect risk more of the Government's money
in the moribund bank? I respectfully submit that decision is for the Central Bank, not
for this Court, to make.
WHEREFORE, I vote to dismiss the petition for certiorari and mandamus in G.R. No.
70054 for lack of merit.
Romero, J., concurs.
25

# Separate Opinions
MELENCIO-HERRERA, J., dissenting:
I join Mme. Justice Carolina G. Aquino in her dissent and vote to deny the prayer, in
G.R. No. 70054, to annul Monetary Board Resolution No. 75 placing Banco Filipino
(BF) under receivership.
Even assuming that the BF was not, as alleged, in a literal state of insolvency at the
time of the passage of said Resolution, there was a finding in the Teodoro report that,
based on that Bank's illiquidity, to have allowed it to continue in operation would have
meant probable loss to depositors and creditors. That is also a ground for placing the
bank under receivership, as a first step, pursuant to Section 29 of the Central Bank
Act (Rep. Act No. 265, as amended). The closure of BF, therefore, can not be said to
have been arbitrary or made in bad faith. There was sufficient justification,
considering its inability to meet the heavy withdrawals by its depositors and to pay its
liabilities as they fell due, to forbid the bank from further engaging in banking.
The matter of reopening, reorganization or rehabilitation of BF is not within the
competence of this Court to ordain but is better addressed to the Monetary Board and
the Central Bank considering the latter's enormous infusion of capital into BF to the
tune of approximately P3.5 Billion in total accommodations, after a thorough
assessment of whether or not BF is, indeed, possessed, as it stoutly contends, of
sufficient assets and capabilities with which to repay such huge indebtedness, and
can operate without loss to its many depositors and creditors.
GRIÑO-AQUINO, J., dissenting:
Although these nine (9) Banco Filipino (BF) cases have been consolidated under one
ponencia, all of them except one, raise issues unrelated to the receivership and
liquidation of said bank. In fact, two of these cases (G.R. No. 68878 and 81303) have
already been decided by this Court and are only awaiting the resolution of the
motions for reconsideration filed therein. Only G.R. No. 70054 "Banco Filipino
Savings and Mortgage Bank (BF) vs. the Monetary Board (MB), Central Bank of the
Philippines (CB), et al.," is an original action for mandamus and certiorari filed in this
Court by former officials of BF to annul the Monetary Board Resolution No. 75 dated
January 25, 1985 (ordering the closure of Banco Filipino [BF] and appointing Carlota
Valenzuela as receiver of the bank) on the ground that the resolution was issued
"without affording BF a hearing on the reports" on which the Monetary Board based
its decision to close the bank, hence, without "administrative due process.", The
prayer of the petition reads:
WHEREFORE, petitioner respectfully prays that a writ of
mandamus be issued commanding respondents immediately to
furnish it copies of the reports of examination of BF employed by
respondent Monetary Board to support its Resolution of January
25, 1985 and thereafter to afford it a hearing prior to any resolution
that may be issued under Section 29 of R.A. 265, meanwhile
annulling said Resolution of January 25, 1985 by writ of certiorari
as made without or in excess ofjurisdiction or with grave abuse of
discretion.
So as to expedite proceedings, petitioner prays that the
assessment of the damages respondents should pay it be deferred
and referred to commissioners.
Petitioner prays for such other remedy as the Court may deem just
and equitable in the premises.
Quezon City for Manila, February 28, 1985. (p. 8, Rollo I-)
and the prayer of the Supplement to Petition reads:
WHEREFORE, in addition to its prayer for mandamus and
certiorari contained in its original petition, petitioner respectfully
prays that Sections 28-A and 29 of the Central Bank charter (R.A.
265) including its amendatory Presidential Decrees Nos. 72, 1771,
1827 and 1937 be annulled as unconstitutional.
Quezon City for Manila, March 4, 1985. (p. 11-G, Rollo I.)
The other eight (8) cases merely involve transactions of BF with third persons and
certain "related" corporations which had defaulted on their loans and sought to
prohibit the extrajudicial foreclosure of the mortgages on their properties by the
receiver of BF. These eight (8) cases are:
1. G.R. No. 68878 "BF vs. Intermediate Appellate Court and Celestina Pahimutang"
involves the repossession by BF of a house and lot which the buyer (Pahimutang)
claimed to have completely paid for on the installment plan. The appellate court's
judgment for the buyer was reversed by this Court. The buyer's motion for
reconsideration is awaiting resolution by this Court;
26
2. G.R. Nos. 77255-58, "Top Management Programs Corporation and Pilar
Development Corporation vs. Court of appeals, et al." (CA-G.R. SP No. 07892) and
"Pilar Development Corporation vs. Executive Judge, RTC, Cavite" (CA-G.R. SP Nos.
0896264) is a consolidated petition for review of the Court of Appeals' joint decision
dismissing the petitions for prohibition in which the petitioners seek to prevent the
receiver/liquidator of BF from extrajudicially foreclosing the P4.8 million mortgage on
Top Management's properties and the P18-67 million mortgage on Pilar Development
properties. The Court of Appeals dismissed the petitions on October 30, 1986 on the
ground that "the functions of the liquidator, as receiver under Section 29 (R.A. 265),
include taking charge of the insolvent's assets and administering the same for the
benefit of its creditors and of bringing suits and foreclosing mortgages in the name of
the bank;"
3. G.R. No. 78766, "El Grande Corporation vs. Court of Appeals, et al.," is an appeal
from the Court of Appeals' decision in CA-G.R. SP No. 08809 dismissing El Grande's
petition for prohibition to prevent the foreclosure of BF's P8 million mortgage on El
Grande's properties;
4. G.R. No. 78894, "Banco Filipino Savings and Mortgage Bank vs. Court of Appeals,
et al." is an appeal of BFs old management (using the name of BF) from the decision
of the Court of Appeals in CA-G.R. SP No. 07503 entitled, "Central Bank, et al. vs.
Judge Zoilo Aguinaldo, et al" dismissing the complaint of "BF" to annul the
receivership, for no suit may be brought or defended in the name of the bank except
by its receiver;
5. G.R. No. 87867, "Metropolis Development Corporation vs. Court of Appeals"
(formerly AC-G.R. No. 07503, "Central Bank, et al. vs. Honorable Zoilo Aguinaldo, et
al.') is an appeal of the intervenor (Metropolis) from the same Court of Appeals'
decision subject of G.R. No. 78894, which also dismissed Metropolis' complaint in
intervention on the ground that a stockholder (Metropolis) may not bring suit in the
name of BF while the latter is under receivership, without the authority of the receiver;
6. G.R. No. 81303, "Pilar Development Corporation vs. Court of Appeals, et al." is an
appeal from the decision dated October 22, 1987 of the Court of Appeals in CA-G.R.
SP No. 12368, "Pilar Development Corporation, et al. vs. Honorable Manuel Cosico,
et al.," dismissing the petition for certiorari against Judge Manuel Cosico, Br. 136,
RTC, Makati, who dismissed the complaint filed by Pilar Development Corporation
against BF, for specific performance of certain developer contracts. An answer filed by
Norberto Quisumbing and Associates, as BF's supposed counsel, virtually confessed
judgment in favor of Pilar Development. On motion of the receiver, the answer was
expunged and the complaint was dismissed. On a petition for certiorari in this Court,
we held that: "As liquidator of BF by virtue of a valid appointment from the Central
Bank, private respondent Carlota Valenzuela has the authority to direct the operation
of the bank in substitution of the former management, which authority includes the
retainer of counsel to represent it in bringing or resisting suits in connection with such
liquidation and, in the case at bar, to take the proper steps to prevent collusion, to the
prejudice of the legitimate creditors, between BF and the petitioners herein which
appear to be owned and controlled by the same interest controlling BF" (p. 49, Rollo).
The petitioners' motion for reconsideration of that decision is pending resolution.
7. G.R. No. 81304, "BF Homes Development Corporation vs. Court of Appeals, et al."
is an appeal from the decision dated November 4, 1987 of the Court of Appeals in
CA-G.R. CV No. 08565 affirming the trial court's order dismissing BF Homes' action to
compel the Central Bank to restore the financing facilities of BF, because the plaintiff
(BF Homes) has no cause of action against the CB.
8. G.R. No. 90473, "El Grande Development Corporation vs. Court of Appeals, et al.,"
is a petition to review the decision dated June 6, 1989 in CA-G.R. SP No. 08676
dismissing El Grande's petition for prohibition to stop foreclosure proceedings against
it by the receiver of BF.
As previously stated, G.R. No. 70054 "BF vs. Monetary Board, et al.," is an original
special civil action for certiorari and mandamus filed in this Court by the old
management of BF, through their counsel, N.J. Quisumbing & Associates, using the
name of the bank and praying for the annulment of MB Resolution No. 75 which
ordered the closure of BF and placed it under receivership. It is a "forum-shopping"
case because it was filed here on February 28, 1985 three weeks after they had filed
on February 2, 1985 Civil Case No. 9675 "Banco Filipino vs. Monetary Board, et al."
in the Regional Trial Court of Makati, Br. 143 (presided over by Judge Zoilo
Aguinaldo) for the same purpose of securing a declaration of the nullity of MB
Resolution No. 75 dated January 25, 1985.
On August 25, 1985, this Court ordered the transfer and consolidation of Civil Case
No. 9676 (to annul the receivership) from Br. 143 to Br. 136 (Judge Manuel Cosico) of
the Makati Regional Trial Court where Civil Case No. 8108 (to annul the
conservatorship) and Civil Case No. 10183 (to annul the liquidation) of BF were and
are still pending. All these three (3) cases were archived on June 30, 1988 by Judge
Cosico pending the resolution of G.R. No. 70054 by this Court.
Because of my previous participation, as a former member of the Court of Appeals, in
the disposition of AC-G.R. No. 02617 (now G.R. No. 68878) and AC-G.R. SP No.
07503 (now G.R. Nos. 78767 and 78894), I am taking no part in G.R. Nos. 68878,
78767 and 78894. It may be mentioned in this connection that neither in AC-G.R. SP
No. 02617, nor in AC-G.R. SP No. 07503, did the Court of Appeals rule on the
constitutionality of Sections 28-A and 29 of Republic Act 265 (Central Bank Act), as
amended, and the validity of MB Resolution No. 75, for those issues were not raised
in the Court of Appeals.
27
I concur with the ponencia insofar as it denies the motion for reconsideration in G.R.
No. 81303, and dismisses the petitions for review in G.R. Nos. 77255-58, 78766,
81304, and 90473.
I respectfully dissent from the majority opinion in G.R. No. 70054 annulling and
setting aside MB Resolution No. 75 and ordering the respondents, Central Bank of
the Philippines and the Monetary Board ?
to reorganize petitioner Banco Filipino Savings and Mortgage Bank,
and allow the latter to resume business in the Philippines under the
comptrollership of both the Central Bank and the Monetary Board
and under such conditions as may be prescribed by the latter until
such time that petitioner bank can continue in business with safety
to its creditors, depositors and the general public.
for I believe that this Court has neither the authority nor the competence to determine
whether or not, and under what conditions, BF should be reorganized and reopened.
That decision should be made by the Central Bank and the Monetary Board, not by
this Court.
All that we may determine in this case is whether the actions of the Central Bank and
the Monetary Board in closing BF and placing it under receivership were "plainly
arbitrary and made in bad faith.
Section 29 of Republic Act No. 265 provides:
Section 29. Proceedings upon insolvency. ? Whenever, upon
examination by the head of the appropriate supervising and
examining department or his examiners or agents into the condition
of any banking institution, it shall be disclosed that the condition of
the same is one of insolvency, or that its continuance in business
would involve probable loss to its depositors or creditors, it shall be
the duty of the department head concerned forthwith, in writing, to
inform the Monetary Board of the facts, and the Board may, upon
finding the statements of the department head to be true, forbid the
institution to do business in the Philippines and shall designate an
official of the Central Bank as receiver to immediately take charge
of its assets and liabilities, as expeditiously as possible collect and
gather all the assets and administer the same for the benefit of its
creditors, exercising all the powers necessary for these purposes
including, but not limited to, bringing suits and foreclosing
mortgages in the name of the banking institution.
The Monetary Board shall thereupon determine within sixty days
whether the institution may be reorganized or otherwise placed in
such a condition so that it may be permitted to resume business
with safety to its depositors and creditors and the general public
and shall prescribe the conditions under which such resumption of
business shall take place as well as the time for fulfillment of such
conditions. In such case, the expenses and fees in the collection
and administration of the assets of the institution shall be
determined by the Board and shall be paid to the Central Bank out
of the assets of such banking institution.
If the Monetary Board shall determine and confirm within the said
period that the banking institution is insolvent or cannot resume
business with safety to its depositors, creditors and the general
public, it shall, if the public interest requires, order its liquidation,
indicate the manner of its liquidation and approve a liquidation plan.
The Central Bank shall, by the Solicitor General, file a petition in the
Court of First Instance, reciting the proceedings which have been
taken and praying the assistance of the court in the liquidation of
the banking institutions. The court shall have jurisdiction in the
same proceedings to adjudicate disputed claims against the bank
and enforce individual liabilities of the stockholders and do all that
is necessary to preserve the assets of the banking institution and to
implement the liquidation plan approved by the Monetary Board.
The Monetary Board shall designate an official of the Central Bank
as liquidator who shall take over the functions of the receiver
previously appointed by the Monetary Board under this section. The
liquidator shall, with all convenient speed, convert the assets of the
banking institution to money or sell, assign or otherwise dispose of
the same to creditors and other parties for the purpose of paying
the debts of such bank and he may, in the name of the banking
institution, institute such actions as may be necessary in the
appropriate court to collect and recover accounts and assets of the
banking institution.
The provisions of any law to the contrary notwithstanding, the
actions of the Monetary Board under this section and the second
paragraph of Section 34 of this Act shall be final and executory, and
can be set aside by the court only if there is convincing proof that
theaction is plainly arbitrary and made in bad faith. No restraining
order or injunction shall be issued by the court enjoining the Central
Bank from implementing its actions under this section and the
second paragraph of Section 34 of this Act, unless there is
convincing proof that the action of the Monetary Board is plainly
arbitrary and made in bad faith and the petitioner or plaintiff files
with the clerk or judge of the court in which the action is pending a
28
 bond executed in favor of the Central Bank, in an amount to be
fixed by the court. The restraining order or injunction shall be
refused or, if granted, shall be dissolved upon filing by the Central
Bank of a bond, which shall be in the form of cash or Central Bank
cashier's check, in an amount twice the amount of the bond of the
petitioner or plaintiff, conditioned that it will paythe which the
petitioner or plaintiff may suffer by the refusalor the dissolution of
the injunction. The provisions of Rule 58 of the new Rules of Court
insofar as they are applicable and not inconsistent with the
provisions of this section shall govern the issuance and dissolution
of the restraining order or injunction contemplated in this section.
Insolvency, under this Act, shall be understood to mean the inability
of a banking institution to pay its liabilities as they fall due in the
usual and ordinary course of business, provided, however, that this
shall not include the inability to pay of an otherwise non-insolvent
bank caused by extra-ordinary demands induced by financial panic
commonly evidenced by a run on the banks in the banking
community.
The determinative factor in the closure, receivership, and liquidation of a bank is the
finding, upon examination by the SES of the Central Bank, that its condition "is one of
insolvency, or that its continuance in business would involve probable loss to its
depositors and creditors." (Sec. 29, R.A. 265.) It should be pointed out that insolvency
is not the only statutory ground for the closure of a bank. The other ground is when
"its continuance in business would involve probable loss to its depositors and
creditors.
Was BF insolvent i.e., unable to pay its liabilities as they fell due in the usual and
ordinary course of business, on and for some time before January 25, 1985 when the
Monetary Board issued Resolution No. 75 closing the bank and placing it under
receivership? Would its continued operation involve probable loss to its depositors
and creditors?
The answer to both questions is yes. Both the conservator Gilberts Teodoro and the
head of the SES (Supervision and Examination Sector) Ramon V. Tiaoqui opined that
BF's continuance in business would cause probable loss to depositors and creditors.
Tiaoqui further categorically found that BF was insolvent. Why was this so?
The Teodoro and Tiaoqui reports as well as the report of the receivers, Carlota
Valenzuela, Arnulfo B. Aurellano and Ramon V. Tiaoqui, showed that since the end of
November 1983 BF had already been incurring "chronic reserve deficiencies' and
experiencing severe liquidity problems. So much so, that it had become "a substantial
borrower in the call loans market" and in June 1984 it obtained a P30 million
emergency loan from the Central Bank. (p. 2, Receiver's Report.) Additional
emergencyt loans (a total of P119.7 millions) were extended by the Central Bank to
BF that month (MB Res. No. 839 dated June 29,1984). On July 12, 1984, BFs
chairman, Anthony Aguirre, offered to "turn over the administration of the affairs of the
bank" to the Central Bank (Aguirre's letter to Governor Jose Fernandez, Annex 7 of
Manifestation dated May 3,1991). On July 23,1984, unable to meet heavy deposit
withdrawals, BF's management motu proprio, without obtaining the conformity of the
Central Bank, closed the bank and declared a bank holiday. On July 27, 1984, the
CB, responding to BFs pleas for additional financial assistance, granted BF a P3
billion credit line (MB Res. No. 934 of July 27, 1984) to enable it to reopen and
resume business on August 1, 1984. P2.3601 billions of the credit line were availed of
by the end of 1984 exclusive of an overdraft of P932.4 millions (p. 2, Tiaoqui Report).
Total accommodations granted to BF amounted to P3.4122 billions (p. 19, Cosico
Report).
Presumably to assure that the financial assistance would be properly used, the MB
appointed Basilio Estanislao as conservator of the bank. A conservatorship team of
78 examiners and accountants was assigned at the bank to keep track of its activities
and ascertain its financial condition (p. 8, Tiaoqui Report).
Estanislao resigned after two weeks for health reasons. He was succeeded by
Gilberto Teodoro as conservator in August, 1984 up to January 8, 1985.
Besides the conservatorship team, Teodoro hired financial consultants Messrs. Tirso
G. Santillan, Jr. and Plorido P. Casuela to make an analysis of BF's financial
condition. Teodoro also engaged the accounting firm of Sycip, Gorres, Velayo and
Company to make an asset evaluation. The Philippine Appraisal Company (PAC)
appraised BFs real estate properties, acquired assets, and collaterals held. On
January 9, 1985, Teodoro submitted his Report. Three weeks later, on January 23,
1985, Tiaoqui also submitted his Report. Both reports showedthat, in violation of
Section 37 of the General Banking Act (R.A.337): 2
1. BF had been continually deficient in liquidity
reserves (Teodoro Report). The bank had been
experiencing a severe drop in liquidity levels. The
ratio of liquid assets to deposits and borrowings
plunged from about 20% at end-1983, to about
8.6% by end-May 1984, much below the statutory
requirements of 24% for demand
deposits/deposit substitutes and 14% for savings
and time deposits. (p. 2, Tiaoqui Report.)
2. Deficiencies in average daily legal reserves
rose from P63.0 million during the week of
November 21-25, 1983 to a high of P435.9
million during the week of June 11-15, 1984 (pp.
29
2-3, Tiaoqui Report). Accumulated penalties on
reserve deficiencies amounted to P37.4 million
by July 31, and rose to P48 million by the end of
1984. (Tiaoqui Report.)
3. Deposit levels, which were at P3,845 million at
end-May l984 (its last "normal" month), dropped
to P935 million at the end of November 1984 or a
loss of P2,910 million. This represented an
average monthly loss of P485 million vs. an
average monthly gain of P26 million during the
first 5 months of 1984. (pp. 2-3, Tiaoqui Report.)
4. Deposits had declined at the rate of P20
million during the month of December 1984, but
expenses of about P17 million per month were
required to maintain the bank's operation. (p. 6,
Teodoro Report.)
5. Based on the projected outlook, the Bank's
average yield on assets of 16.3% p.a., was
insufficient to meet the average cost of funds of
19.5% p.a. and operating expenses of 4.8% p.a.
(p. 5 Teodoro Report.)
6. An imprudently large proportion of assets were
locked into long-term applications. (Teodoro
Report.)
7. BF overextended itself in lending to the real
estate industry, committing as much as 52% of its
peso deposits to its affiliates or "related accounts"
to which it continued lending even when it was
already suffering from liquidity stresses. (Teodoro
Report.) This was done in violation of Section 38
of the General Banking Act (R.A. 337). 3
8. During the period of marked decline in liquidity
levels the loan portfolio grew by P417.3 million in
the first five months of 1984 ? and by another
P105.l million in the next two months. (pp. 2-3,
Tiaoqui Report.)
9. The loan portfolio stood at P3.679 billion at the
end of July 1984, 56.2% of it channeled to
companies whose stockholders, directors and
officers were related to the officers, directors, and
some stockholders of BF. (p. 8, Tiaoqui Report.)
Here again BF violated the General Banking Act
(R.A. 337). 4
10. Some of the loans were used to acquire
preferred stocks of BF. Between September 17,
1983 and February 10, 1984, P49.9 million of
preferred non-convertible stocks were issued.
About 85% or P42.4 million was paid out of the
proceeds of loans to stockholders/ borrowers with
relationship to the bank (Annex D). Around P18.8
million were issued in the name of an entity other
than the purchaser of the stocks. (Tiaoqui
Report.)
11. Loans amounting to some P69.3 million were
granted simply to pay-off old loans including
accrued interest, as an accommodation for the
direct maturing loans of some firms and as a way
of paying-off loans of other borrower firms which
have their own credit lines with the bank. These
helped to make otherwise delinquent loans
appear "current" and deceptively "improved" the
quality of the loan portfolio. (Tiaoqui Report.)
12. Examination of the collaterals for the loan
accounts of 63 major borrowers and 32 other
selected borrowers as of July 31, 1984, showed
that:
(a) 2,658 TCT's which BF
evaluated to be worth P1,487
million were appraised by PAC
to be worth only P1,196 million,
hence, deficient by P291
million.
(b) Other properties
(collaterals) supposedly worth
P711 million could not be
evaluated by PAC because the
30
 details submitted by the bank
were insufficient;
(c) While P674 million in loans
were supposedly guaranteed
by the Home Financing
Corporation (HFIC), the latter
confirmed only P427 million.
P247 million in loans were not
guaranteed by HFC. (Teodoro
Report.)
(d) Per SGV's report, loans
totalling P1.882 million
including accrued interest,
were secured by collateral
worth only Pl.54 billion. Hence,
BFs unsecured exposure
amounted to P586.2 million. BF
Homes, Inc., a related
company which has filed with
the SEC a petition for
suspension of payments, owes
P502 million to BF.
13. BF had been suffering heavy losses. ?
a) For the eleven (11) months
ended November 30, 1984, the
estimated net loss was P372.6
Million;
b) For the twelve (12) months
from November 1984, the
projected net loss would be
P390.7 Million and would
continue unabated; (p. 2,
Teodoro Report)
c) Around 71.7% of the total
accommodations of P2.0677
billions to the related/linked
entities were adversely
classified. Close to 33.7% or
P697.1 millions were clean
loans or against PNs
(promissory notes) of these
entities. Of the latter, 52.6%
were classified as loss." (P. 5,
Tiaoqui Report.)
d) The bank's financial
condition as of date of
examination, after setting up
the additional valuation
reserves of P612.2 millions and
accumulated net loss of P48.2
millions, indicates one of
insolvency. Total liabilities of
P5,282.1 million exceeds total
assets of P4,947.2 million by
6.8%. Total capital account of
P334.9 million) is deficient by
P322.7 million against the
minimum capital required of
P657.6 million (Annex F).
Capital to risk assets ratio is
negative 10.38%.
e) Total loans and investment
portfolio amounted to P3,914.3
millions (gross), of which
P194.0 millions or 5.0% were
past due and P1,657.1 millions
or 42.3% were adversely
classified (Substandard ?
P1,011.4 millions; Doubtful ?
P274.6 millions and Loss ?
P371.1 millions). Accounts
adversely classified included
unmatured loan of Pl,482.0
million to entities related with
each other and to the bank,
several of which showed
distressed conditions. (p. 7,
Tiaoqui Report.)
Teodoro's conclusion was that "the continuance of the bank in business would involve
probable loss to its depositors and creditors." He recommended "that the Monetary
Board take a more effective and responsible action to protect the depositors and
creditors ... in the light of the bank's worsening condition." (p. 5, Teodoro Report.)
31
On January 23, 1985, Tiaoqui submitted his report to the Monetary Board, Like
Teodoro, Tiaoqui believed that the principal cause of the bank's failure was that in
violation of the General Banking Law and CB rules and regulations, BF's major
stockholders, directors and officers, through their "related" companies: (i.e.
companies owned or controlled by them of their relatives) had been "borrowing" huge
chunks of the money of the depositors. His Conclusion and Recommendations were:
The Conservator, in his report to the Monetary Board dated January
8, 1985, has stated that the continuance of the bank in business
would involve probable loss to its depositors and creditors. It has
recommended that a more effective action be taken to protect
depositors and creditors.
The examination findings as of July 31, 1984 as shown earlier,
indicate one of insolvency and illiquidity and further confirms the
above conclusion of the Conservator.
All the foregoing provides sufficient justification for forbidding the
bank from further engaging in banking.
Foregoing considered, the following are recommended:
1. Forbid the Banco Filipino
Savings & Mortgage Bank to
do business in the Philippines
effective the beginning of office
on January, 1985, pursuant to
Sec. 29 of R.A. No. 265, as
amended;
2. Designate the Head of the
Conservator Team at the bank,
as Receiver of Banco Filipino
Savings & Mortgage Bank, to
immediately take charge of the
assets and liabilities, as
expeditiously as possible
collect and gather all the
assets and administer the
same for the benefit of all the
creditors, and exercise all the
powers necessary for these
purposes including but not
limited to bringing suits and
foreclosing mortgages in the
name of the bank.
3. The Board of directors and
the principal officers from
Senior Vice President, as listed
in the attached Annex "A" be
included in the watchlist of the
Supervision and Examination
Sector until such time that they
shall have cleared themselves.
4. Refer to the Central Banles
Legal Department and Office of
Special Investigation the report
on the findings on Banco
Filipino for investigation and
possible prosecution of
directors, officers and
employees for activities which
led to its insolvent position."
(pp. 9-10, Tiaoqui Report.)
On January 25, 1985 or two days after the submission of Tiaoqui's Report, and three
weeks after it received Teodoro's Report, the Monetary Board, then composed of:
Chairman: Jose B. Fernandez, Jr.
CB Governor
Members:
1. Cesar E.A. Virata, Prime Minister &
Concurrently Minister of Finance
2. Roberto V. Ongpin, Minister of Trade &
Industry & Chairman of Board of Investment
3. Vicente B. Valdepeñas, Jr., Minister of
Economic Planning & Director General of NEDA
4. Cesar A. Buenaventura, President of Filipinas
Shell Petroleum Corp. (p. 37, Annual Report
1985)
32
issued Resolution No. 75 closing BF and placing it under receivership. The MB
Resolution reads as follows:
After considering the report dated January 8, 1985 of the
Conservator for Banco Filipino Savings and Mortgage Bank that the
continuance in business of the bank would involve probable loss to
its depositors and creditors, and after discussing and finding to be
true the statements of the Special Assistant to the Governor and
Head, Supervision and Examination Sector (SES) Department II, as
recited in his memorandum dated January 23, 1985. that the Banco
Filipino Savings and Mortgage Bank is insolvent and that its
continuance in business would involve probable loss to its
depositors and creditors, and in pursuance of Section 29 of R.A.
No. 265, as amended, the Board decided:
1. To forbid Banco Filipino
Savings and Mortgage Bank
and all its branches to do
business in the Philippines;
2. To designate Mrs. Carlota P.
Valenzuela, Deputy Governor,
as Receiver who is hereby
directly vested with jurisdiction
and authority to immediately
take charge of the bank's
assets and liabilities, and as
expeditiously as possible
collect and gather all the
assets and administer the
same for the benefit of its
creditors, exercising all the-
powers necessary for these
purposes including, but not
limited to, bringing suits and
foreclosing mortgages in the
name of the bank;
3. To designate Mr. Arnulfo B.
Aurellano, Special Assistant to
the Governor, and Mr. Ramon
V. Tiaoqui, Special Assistant to
the Governor and Head,
Supervision and Examination
Sector Department II. as
Deputy Receivers who are
likewise hereby directly vested
with jurisdiction and authority to
do all things necessary or
proper to carry out the
functions entrusted to them by
the Receiver and otherwise to
assist the Receiver in carrying
out the functions vested in the
Receiver by law or Monetary
Board resolutions;
4. To direct and authorize
Management to do all other
things and carry out all other
measures necessary or proper
to implement this Resolution
and to safeguard the interests
of depositors/credition and the
general public; and
5. In consequence of the
foregoing, to terminate the
conservatorship over Banco
Filipino Savings and Mortgage
Bank. (pp. 126-127, Rollo I.)
On March 19,1985, the receiver, Carlota Valenzuela, and the deputy receivers,
Arnulfo B. Aurellano and Ramon V. Tiaoqui, submitted a report to the Monetary Board
as required in Section 29, 2nd paragraph of R.A. 265 which provides that within sixty
(60) days from date of the receivership, the Monetary Board shall determine whether
the bank may be reorganized and permitted to resume business, or be liquidated. The
receivers recommended that BF be placed under litigation. For, among other things,
they found that:
1. BF had been suffering a capital deficiency of P336.5 million as of July 31, 1984
(pp. 2 and 4, Receivers' Report).
2. The bank's weekly reserve deficiencies averaged P146.67 million from November
25, 1983 up to March 16, 1984, rising to a peak of P338.09 million until July 27, 1984.
Its reserve deficiencies against deposits and deposit substitutes began on the week
ending June 15, 1984 up to December 7, 1984, with average daily reserve
deficiencies of P2.98 million.
33
3. Estimated losses or "unhooked valuation reserves" for loans to entities with
relationships to certain stockholder/directors and officers of the bank amounted to
P600.5 million. Combined with other adjustments in the amount of P73.2 million, they
will entirely wipe out the bank's entire capital account and leave a capital deficiency of
P336.5 million. The bank was already insolvent on July 31, 1984. The capital
deficiency increased to P908.4 million as of January 26, 1985 on account of
unhooked penalties for deficiencies in legal reserves (P49.07 million), unhooked
interest on overdrawings, emergency advance of P569.49 million from Central Bank,
and additional valuation reserves of P124.5 million. (pp. 3-4, Receivers' Report.)
The Receivers further noted that ?
After BF was closed as of January 25, 1985, there were no
collections from loans granted to firms related to each other and to
BF classified as "doubtful" or "loss," there were no substantial
improvements on other loans classified "doubtful"or "loss;" there
was no further increase in the value of assets owned/acquired
supported by new appraisals and there was no infusion of
additional capital such that the estimated realizable assets of BF
remained at P3,909.23, (millions) while the total liabilities amounted
to P5,159.44 (millions). Thus, BF remains insolvent with estimated
deficiency to creditors of Pl,250.21 (millions).
Moreover, there were no efforts on the part of the stockholders of
the bank to improve its financial condition and the possibility of
rehabilitation has become more remote. (P. 8, Receivers' Report.)
In the light of the results of the examination of BF by the Teodoro and Tiaoqui teams, I
do not find that the CB's Resolution No. 75 ordering BF to cease banking operations
and placing it under receivership was "plainly arbitrary and made in bad faith." The
receivership was justified because BF was insolvent and its continuance in business
would cause loss to its depositors and creditors. Insolvency, as defined in Rep. Act
265, means 'the inability of a banking institution to pay its liabilities as they fall due in
the usual and ordinary course of business. Since June 1984, BF had been unable to
meet the heavy cash withdrawals of its depositors and pay its liabilities to its creditors,
the biggest of them being the Central Bank, hence, the Monetary Board correctly
found its condition to be one of insolvency.
All the discussion in the Santiago Report concerning the bank's assets and liabilities
as determinants of BF's solvency or insolvency is irrelevant and inconsequential, for
under Section 29 of Rep. Act. 265, a bank's insolvency is not determined by its
excess of liabilities over assets, but by its "inability to pay its liabilities as they fall due
in the ordinary course of business" and it was abundantly shown that BF was unable
to pay its liabilities to depositors for over a six-month-period before it was placed
under receivership.
Even if assets and liabilities were to be factored into a formula for determining
whether or not BF was already insolvent on or before January 25, 1985, the result
would be no different. The bank's assets as of the end of 1984 amounted to P4.891
billions (not P6 billions) according to the Report signed and submitted to the CB by
BF's own president, and its total liabilities were P4.478 billions (p. 58, Cosico Report).
While Aguirre's Report showed BF ahead with a net worth of P412.961 millions, said
report did not make any provision for estimated valuation reserves amounting to
P600.5 millions, (50% of face value of doubtful loans and 100% of face value of loss
accounts) which BF had granted to its related/linked companies. The estimated
valuation reserves of P600.5 millions plus BF's admitted liabilities of P4.478 billions,
put together, would wipe out BFs realizable assets of P4.891 billions and confirm its
insolvent condition to the tune of P187.538 millions.
BF's and Judge (now CA Justice) Consuelo Y. Santiago's argument that valuation
reserves should not be considered because the matter was not discussed by Tiaoqui
with BF officials is not well taken for:
(1) The records of the defaulting debtors were in the possession of BF.
(2) The "adversely classified" loans were in fact included in the List of Exceptions and
Findings (of irregularities and violations of laws and CB rules and regulations)
prepared by the SES, a copy of which was furnished BF on December 1 7, 1984;
(3) A conference on the matter washeld on January 2l, 1985 with senior officials of BF
headed by EVP F. Dizon,. (pp. 14-15, Cosico Report.) BF did not formally protest
against the CBs estimate of valuation reserves. The CB could not wait forever for BF
to respond for the CB had to act with reasonable promptness to protect the depositors
and creditors of BF because the bank continued to operate.
(4) Subsequent events proved correct the SES classification of the loan accounts as
"doubtful" or "loss' because as of January 25, 1985 none of the loans, except three,
had been paid either partially or in full, even if they had already matured (p. 53,
Cosico Report).
The recommended provision for valuation reserves of P600.5 millions for "doubtful"
and "loss" accounts was a proper factor to consider in the capital adjustments of BF
and was in accordance with accounting rules. For, if the uncollectible loan accounts
would be entered in the assets column as "receivables," without a corresponding
entry in the liabilities column for estimated losses or valuation reserves arising from
their uncollectability, the result would be a gravely distorted picture of the financial
condition of BF.
34
BF's strange argument that it was not insolvent for otherwise the CB would not have Griño-Aquino, dissenting :
given it financial assistance does not merit serious consideration for precisely BF
needed financial assistance because it was insolvent. 1 P. 3, Petition.

Tiaoqui's admission that the examination of BF had "not yet been officially terminated" 2 Sec. 37. All savings and mortgage banks shall maintain on
when he submitted his report on January 23, 1985 did not make the action of the deposit with the Central Bank of the Philippines such reserves
Monetary Board of closing the bank and appointing receivers for it, 'plainly arbitrary against their deposit liabilities as the Monetary Board shall
and in bad faith." For what had been examined by the SES was more than enough to determine in accordance with the pertinent provisions of the Central
warrant a finding that the bank was "insolvent and could not continue in business Bank Act.
without probable loss to its depositors or creditors," and what had not been examined
was negligible and would not have materially altered the result. In any event, the
official termination of the examination with the submission by the Chief Examiner of 3 Sec. 38. Whenever there is a call by depositors of a saving bank
his report to the Monetary Board in March 1985, did not contradict, but in fact for repayment of their deposits and the call so made shall result in
confirmed, the findings in the Tiaoqui Report. reducing its legal reserves below the amount required by the
Monetary Board, such bank shall not make any new loans or
investment 0 the funds of depositors or earnings of such funds until
The responsibility of administering the Philippine monetary and banking systems is the call of the depositors has been satisfied and its legal reserves
vested by law in the Central Bank whose duty it is to use the powers granted to it have been restored to the required minimum.
under the law to achieve the objective, among others, of maintaining monetary
stability in the country (Sec. 2, Rep. Act 265). I do not think it would be proper and
advisable for this Court to interfere with the CB's exercise of its prerogative and duty 4 Sec- 83. No director or officer of any banking institution shall,
to discipline banks which have persistently engaged in illegal, unsafe, unsound and either directly or indirectly, for himself or as the representative or
fraudulent banking practices causing tremendous losses and unimaginable anxiety agent of others, borrow any of the deposits of funds of such bank ...
and prejudice to depositors and creditors and generating widespread distrust and loss .
of confidence in the banking system. The damage to the banking system and to the
depositing public is bigger when the bank, like Banco Filipino, is big. With 89
branches nationwide, 46 of them in Metro Manila alone, pumping the hard-earned
savings of 3 million depositors into the bank, BF had no reason to go bankrupt if it
were properly managed. The Central Bank had to infuse almost P3.5 billions into the
bank in its endeavor to save it. But even this financial assistance was misused, for
instead of satisfying the depositors' demands for the withdrawal of their money, BF
channeled and diverted a substantial portion of the finds into the coffers of its
related/linked companies. Up to this time, its officers, directors and major
stockholders have neither repaid the Central Bank's P3.6 billion financial assistance,
nor put up adequate collaterals therefor, nor submitted a credible plan for the
rehabilitation of the bank. What authority has this Court to require the Central Bank to
reopen and rehabilitate the bank, and in effect risk more of the Government's money
in the moribund bank? I respectfully submit that decision is for the Central Bank, not
for this Court, to make.

WHEREFORE, I vote to dismiss the petition for certiorari and mandamus in G.R. No.
70054 for lack of merit.

Romero, J., concurs.

# Footnotes

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