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Republic of the Philippines

REGIONAL TRIAL COURT


Second Judicial Region
Branch ____
Aparri, Cagayan

JUNIOR DELA CRUZ


Plaintiff

Civil Case No. _________


For: DECLARATION OF NULLITY
-versus- OF TRANSFER OF CERTIFICATE OF TITLE
WITH TRO/INJUNCTION

THIM MCKEY BANK


Defendant.

x----- ---- -------------- --x

ANSWER WITH MOTION TO DISMISS

DEFENDANT, by counsel, and to the Honorable Court, in ANSWER to the


COMPLAINT, respectfully states:

1. Paragraph 1 is vehemently denied for failure of the plaintiff to attach


evidence to support his legal capacity as the sole legal heir of Senior
Dela Cruz1;

2. Paragraph (2) is admitted;

3. Paragraph (4) is admitted;

4. Paragraph (5) is admitted in part that the defendant Bank instituted


an extrajudicial foreclosure of the real estate mortgage constituted
by Senior Dela Cruz in favor of the bank; however, defendant Bank
DENIES that the extrajudicial foreclosure was without any reason or
explanation why the mortgagor defaulted, for the very reason for
such foreclosure was the non-payment of the mortgage obligation; 2

5. The defendant Bank denies the allegations in paragraphs 6, 7 and 8


of the said complaint for lack of knowledge sufficient to form a belief
as to the truth thereof;

6. Paragraphs (9) and (10) are hereby ADMITTED. For his failure to
exercise his Right of Redemption within one (1) year from the

1 Section 1 (d) of Rule 16 “Rules of Court”


2 Paragraph 29 of the Complaint

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registration of the Certificate of Sale, herein plaintiff was already
divested of its ownership over the lot3;

7. Paragraph (11) is hereby DENIED for the reason that the parties to
the forged DEED OF SALE were the PLAINTIFF (JUNIOR DE LA CRUZ)
and PACITA PACITO) and the Defendant BANK has no knowledge or
participation therein;

8. Paragraph (12) is admitted for the reason that since the foreclosure
of the real estate mortgage and the subsequent auction sale wherein
the defendant BANK was the sole bidder, and after the lapse of the
redemption period of one (1) year wherein the mortgagor failed to
redeem the property, the BANK became the consolidated and
absolute owner;

9. Paragraph (13) is DENIED, the truth of the matter is that the subject
lot at the time it was mortgaged was untitled, but was duly covered
by a Tax Declaration under the name of the Mortgagor, hence, it was
already a private property only that it was not yet registered under
the Torrens system.

Moreover, it is the within the practice of the BANK to accept the Tax
Declaration as sufficient evidence of the land’s identity, being not
registered prior its encumbrance; Commented [1]:
May note kasi si ate Muriel dito re: sufficiency ng
taxdec as proof of ownership, pwede niyo edit/cancel
10. Paragraphs (14), (15) and (16) are all legal matters not applicable to na lang if sufficient na ung naunang pargraph. Thanks.

the subject lot for at the time of mortgage (the mortgage was entered Commented [HC2R1]:

on July 5, 1973), it was not yet covered by the Free Patent or


Homestead Patent, having been granted to the plaintiff only on July
12, 1991.

The Supreme Court in the case of Manlapat vs. Court of Appeals 4 made
a very clear discussion on the prohibition of alienation or transfer of
the free/homestead patent:

Where the alienation or transfer took place before the filing of a free
patent application, the prohibition should NOT be applied. In such
situation, neither the prohibition nor the rationale therefor which is to
keep in the family of the patentee that portion of the public land which
the government has gratuitously given him, by shielding him from the
temptation to dispose of his landholding, could be relevant. Precisely, he
had disposed of his rights to the lot even before the government could
give the title to him.

Therefore, the encumbrances thereon are not null and void, as these
do NOT fall within the ambit of the prohibition.

3 Section 25 (d) of Rule 39 Rules of Court


4 G.R. No. 125585, June 8, 2005

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Such being the case, it cannot be said that the bank was in bad faith for
accepting the encumbered property that did not originate from a free
patent. In any event, at the time of the mortgage, the Rural Banks Act
(Republic Act No. 720), as amended by Republic Act No. 5939 already
allows banks to accept free patents as security for loan obligations5;

To emphasize, the provision states that:

x x x That when a homestead or free patent land is foreclosed, the


homesteader or free patent holder, as well as their heirs shall have
the right to redeem the same within two years from the date of
foreclosure in case of a land not covered by a Torrens title or two
years from the date of the registration of the foreclosure in the case
of a land covered by a Torrens title: Provided, finally, That in case of
borrowers who are mere tenants the produce corresponding to their
share may be accepted as security." x x x

11. Paragraphs (17) and (18) are hereby DENIED for the truth of the
matter is that the BANK is NOT questioning the title issued to the
Plaintiff but merely demands that the title be surrendered to the BANK
for the reason that the lot covered by the title was long foreclosed and
owned by the BANK prior to the issuance of the title.

Furthermore, for the reversion of the homestead to the state to apply,


there must first be a violation of the prohibition on transfer or alienation
of a homestead grant within five (5) years from the issuance thereof,
which is not the case herein as earlier stated6.

To note, the Supreme Court decided in the case of Arsenal vs. IAC 7, which
states that:

x x x The reversion of a public land grant to the government is


effected only at the instance of the Government itself (Gacayan v. Leano,
121 SCRA 260; Gonzalo Puyat & Sons, Inc. v. De las Ama and Aliño, 74 Phil.
3). The reversion contemplated in the Public Land Act is not automatic.
The Government has to take action to cancel the patent and the certificate
of title in order that the land involved may be reverted to it (Villacorta v.
Ulanday, 73 Phil.) x x x

Clearly, the plaintiff failed to present evidence that the government took
any necessary action for the reversion of the homestead patent to the
state;

12. Paragraphs (19) and (20) do not apply for the reason that the
foreclosure and subsequent ownership of the bank over the lot in
question were all made prior to the issuance of the title. The General

5 R.A. No. 720 (Rural Banks Act), as amended by R.A. No. 5939
6 Paragraph 10 herein
7 Arsenal vs IAC, 143 SCRA 42 (1956)

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Banking Laws and other pertinent issuances by the Bangko Sentral ng
Pilipinas are irrelevant because the Cause of Action arose in 1973.

Moreover, Section 47 of RA 8791 is NOT retroactive since it exempts from


its operation those properties foreclosed prior to its effectivity and
whose owners shall return their redemption rights under Republic Act
31358.

It should be noted that, Act No. 3135 is a special law specifically


governing real estate mortgage and foreclosure. Under the rules of
statutory construction in case of conflict, a special law prevails over a
general law regardless of the dates of enactment of both laws, Act No.
3135 clearly should prevail on the redemption period to be applied in this
case;

13. Paragraphs (21) to (27) do not apply for reasons stated in the
preceding paragraph;

14. Paragraph (28) is hereby DENIED for lack of factual and legal basis;

15. Paragraphs (29) and (30) are hereby DENIED, the truth of the matter
being that the clause quoted does not constitute “pactum commissorium”;
the clause merely pertains to possession and ownership. To point out, the
prohibition on pactum commissorium stipulations is provided for by
Article 2088 of the Civil Code:
Art. 2088. The creditor cannot appropriate the things given by way
of pledge or mortgagee, or dispose of the same. Any stipulation to
the contrary is null and void.
Noteworthy that this is a clause in a contract which states that in case of
default, the obligee automatically becomes the owner of the property
subject of the obligation9; in this case, the BANK acquired the property
being the sole bidder in the foreclosure sale. It did not automatically
become the owner thereof.

16. Paragraphs (31) to (42) are hereby DENIED for lack of factual and
legal bases;

AS SPECIAL AFFIRMATIVE DEFENSE

DEFENDANT BANK hereby adopts and re-pleads all the foregoing


allegations, and, by way of Special Affirmative Defense, hereby states:

17. The COMPLAINT is barred by PRESCRIPTION.

The assailed REAL ESTATE MORTGAGE constituted by SENIOR DE LA


CRUZ was executed way back 05 July 1973. The COMPLAINT was filed

8 Golden Way Merchandising Corp. VS Equitable PCI Bank, G.R. No. 195440, March 13, 2013
9 Article 2088 “Civil Code of the Philippines”

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only on 21 September 2018, or after more or less forty-five (45) years.
The period to bring an action on an actionable document (real estate
mortgage) is within ten (10) years after execution. The pertinent rule
on actionable documents is found in Rule 8, Section 7 of the Rules of
Court which provides that when the cause of action is anchored on a
document, the genuineness or due execution of the instrument shall
be deemed impliedly admitted unless the defendant, under oath,
specifically denies them, and sets forth what he claims to be the facts.10

As enunciated in the case of Arsenio G. Tan vs. Artemio G. Ramirez11:

x x x Acquisitive prescription of real rights may be ordinary or


extraordinary. Ordinary acquisitive prescription requires possession in
good faith and with just title for ten years. In extraordinary
prescription, ownership and other real rights over immovable property
are acquired through uninterrupted adverse possession for thirty years
without need of title or of good faith. x x x

Clearly, the filing in 2018 is beyond the period to bring such action.

AS COUNTERCLAIM

DEFENDANT BANK again adopts all the foregoing allegations, and as


COUNTERCLAIM, hereby alleges:

18. The COMPLAINT is baseless, malicious, and frivolous, the filing of


which has caused damage to the reputation of the defendant, a well-
known banking institution. For this reason, the Plaintiff must be
condemned to compensate the bank for nominal and exemplary damages,
in the amount of P100,000.00; and

19. The bank was constrained to engage the services of counsel to defend
and protect its rights and interest for an agreed Attorney’s Fee of
P200,000.00, plus trial honoraria of P5,000.00 per trial.

PRAYER

WHEREFORE, it is respectfully prayed of the Honorable Court to DISMISS


outright the above case; and, order the Plaintiff to pay – a) P100,000.00 as
nominal and exemplary damages; b) P200,000.00 as Attorney’s Fees and
P5,000.00 trial honorarium; and

Such other relief, just and proper.

Tuguegarao, Cagayan, 22 January 2019.

10 Rule 8, Section 7 Rules of Court


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G.R. No. 158929, August 3, 2010

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Atty. Pepito Manaloto, Jr.
Counsel for Defendant
Centro, Tuao, Cagayan
Roll No. 533266
IBP O.R. No. 07356 Jan. 10, 2019
PTR No. 2468135 Jan. 4, 2019-Cagayan
MCLE Compliance No. VI-0010348
Valid Until April 14, 2022
Copy furnished:

Atty. MAKAULAW
CSU Andrews Campus,
Tuguegarao city, Cagayan
(by reg. mail under reg. receipt
# dated 21 Jan. 2019, for
Lack of messengerial services)

EXPLANATION

Copy of the foregoing Answer with Special/Affirmative Defense with


Counterclaim was furnished to Atty. Makaulaw and submitted to the Honorable
Court via registered mail due to distance and lack of manpower to effect personal
service.

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