REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT SIXTH JUDICIAL REGION BRANCH 22 Iloilo City

ERMITA C. MUNOZ represented by her mother and Attorney in Fact Teresa D. Columbares Plaintiff/Appellee, -versusSpouses SAMUEL and VICTORIA CHAN , Defendants/Appellants.

Civil Case No. 765

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MEMORANDUM FOR THE PLAINTIFF-APPELLEE

I. FACTS OF THE CASE

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Plaintiff/Appellee ERMITA C. MUNOZ is the lawful possessor of a parcel of land with residential house thereon, known as Lot No. 1944 of the Cadastral Survey of Oton covered by Transfer Certificate Title No. T-152858 with an area 283 square meters, more or less, situated at 123 C.M. Recto St., Oton, Iloilo. Plaintiff was able to acquire the said residential lot and house through sale from Spouses Samuel T. Chan and Victoria T. Chan; a Contract to Sell dated August 4, 2009 was executed between her and the spouses. She paid the sum of THREE HUNDRED THOUSAND PESOS [PHP 300, 000.00], in accordance with the terms of the said Contract which amount was duly received by Spouses Chan; In accordance with the terms of the Contract, Plaintiff issued postdated checks in the total amount of PHP 100,000.00 beginning September 2009 in order to assume the mortgage on the properties with Philmay Property, Incorporated, through Maybank Iloilo. Plaintiff was ready to pay the remaining amount of PHP 1,000,000.00 on the date set for payment, again in accordance with the terms and conditions of the said Contract;
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the checks representing payment for two (2) months September and October 2009 were duly encashed by Spouses Chan. 1.3 Upon execution of the said Contract to Sell on August 4, 2009 plaintiff immediately took possession of the house and lot and had been residing thereon with the assurance from the Spouses to complete the unfinished necessary construction, repair and improvements shall be undertaken at the expense of the latter in compliance with the terms and conditions of the said Contract to Sell; For several months plaintiff waited for the construction and repair to begin but the said promises of Spouses did not materialize into reality that plaintiff after conferring with the spouses took the responsibility of finishing the construction, necessary repairs and improvements and incurred actual expenses in the amount of PHP 172, 834.07 which defendants promised to reimburse; aside from the said amount of PHP 172, 834.07 as actual expenses; Spouses Chan likewise received from plaintiff the amount of PHP 30,000.00 as personal loan1 and an additional amount of PHP 14,000.00 which defendants paid to their agents and shall be counted as part of advance payment of the subject premises;

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After incurring all expenses and complying with the terms and conditions of the Contract to Sell plaintiff, was suddenly confronted by defendant Samuel Chan that he will not anymore continue with the Contract to Sell which caused the plaintiff so much distress which promted her to cancel her flight to the United States; Plaintiff told defendant Spouses Chan that she will leave the house after she has been reimbursed the amount that she had spent in the total amount of PHP 616, 834.07 and instructed her bank to stop payment of the remaining checks that she had issued; Instead of reimbursing plaintiff, Spouses sent her Notices to Vacate subject premises as evidenced by two [2] letters dated October 20, 2009 and November 25, 2009; in return plaintiff sent defendants thru their counsel a letter enumerating all the expenses that she incurred and demanded for reimbursement;

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The Plaintiffs residence is under the care of her mother Teresa D. Columbares; later, plaintiff hired a caretaker in the person of Aida R. Yabut who took charge in the maintenance and cleaning of the subject premises; Sometime on August 2010 defendants and their men forcibly and surreptitiously entered the subject premises by destroying all the padlocks, changing the same, that, when plaintiffs caretakers and mother came back to open the gate and the main door they were not able to do so and found defendants' men inside; the incident was reported to the police authorities of Oton, Iloilo. Plaintiff's furnitures, appliances and personal things were still inside the house which were appropriated by defendants and their men to themselves; Plaintiff was in possession of the house since August 5, 2009 until she was dispossessed by Spouses Alfonso and their men by means of force stealth and strategy and because of the unjustified, unlawful and forcible entry of defendants she incurred actual expenses in the form of legal fees and lost all her furnitures, appliances and personal things amounting to PHP 76,000.00, more or less aside from the actual expenses she incurred in the construction of the subject premises; The said unjustified and unlawful acts of Spouses constrained plaintiff to send the latter a Demand to Vacate dated October 22, 2010 which was acknowledged to have been received by Spouses counsel in a letter dated November 4, 2010; Spouses Chans defenses were the alleged abandonment of plaintiff of the subject property and the alleged violation of the latter of the Contract to Sell dated August 4, 2009; During the Preliminary Conference on December 4, 2011, Spouses defendants have the following admissions:

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1. Defendants admit that the subject premises is the house known as Lot No. 1944 covered by TCT No. T-152858 with an area of 283 square meters situated at 123 C.M. Recto St., Oton, Iloilo; 2. Defendants admit that the said house and lot is subject to Contract to Sell dated August 4, 2009 known as Document No. 48; Page No. 11; Book No. 7; Series of 2009 by Atty. Giselle G. Durana of Villa and Partners; 3. Defendants admit that they received the cash amount of Three Hundred Thousand Pesos (P300,000.00) from Plaintiff pursuant to

the terms and conditions of the said Contract to Sell dated August 4, 2009; 4. Defendants admit that in the Contract to Sell it was stipulated that the Plaintiff shall assume the mortgage value of the property which she was required to issue twelve (12) postdated checks in favor of the Defendants; 5. Defendants admit that the Plaintiff was in possession of the subject property on August 5, 2009; 6. Defendants admit that they received Thirty Thousand Pesos (P30,000.00) but they will not admit the amount of Fourteen Thousand Pesos (P14,000.00); 7. Defendants admit that they sent Plaintiff a Notice to Vacate on the subject premises dated October 20, 2009; 8. Defendants admit that they again sent a Notice to Vacate on the subject premises to Plaintiff on November 25, 2009; 9. Defendants admit that they received the Plaintiffs Letter dated January 30, 2010 demanding for the reimbursement of the amount paid pursuant to the Contract to Sell and the actual expenses incurred on the subject premises in the total amount of Six Hundred Sixteen Thousand Eight Hundred Thirty Four Pesos and 07/100 (P616,834.07); 10. Defendants admit that they received the Notice to Vacate dated October 22, 2010 of the Plaintiff.

II. ISSUES: 4.1 Whether or not the court a quo committed grave abuse of

discretion amounting to in excess of jurisdiction when it ruled that plaintiff-appellees right of possession is based on her right of retention of the property until she is reimbursed of the amount of Php 616,834.07 plus legal rate of interest of 6% per annum;

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Whether or not the court a quo committed grave error when it

ordered appellants to vacate and return the possession of Lot No. 1944 situated at 123 C.M. Recto St., Barangay Poblacion West, Oton Iloilo when there is no actual finding that appellants employed force, intimidation, threat strategy or stealth to deprive plaintiff-appellee of the possession of the same; and

4.3 fees.

Whether or not the court a quo committed grave error when it

ruled that appellants were not entitled to possession and attorneys

ARGUMENTS

AS TO THE FIRST THE FIRST ISSUE: 1.1 The court a quo did not commit a grave abuse of discretion amounting to excess of jurisdiction when it ruled that the plaintiff has the right of retention until she is reimbursed of the amount of Php 616,834.07 plus 6% rate of interest per annum, to wit: 1.1.1 A. The appellee is a builder in good faith. Article 448 of the NCC applies when the builder believes he has the right to so build because he thinks he believes himself to have a claim of title (morales v. CA, 83 SCRA 750) and when there is an adverse claim, he has the right to retain such improvements. Based on the facts alleged, no letter to stop the construction came from defendant. This is a strong evidence since the Court a quo is a trier of facts. The evidence of good faith is prevalent in this case on the part of the appellee. Article 527 provides good faith is always presumed. As held in the case of Sideco vs. Pascua 13 Phil. 342 no evidence is presented proving bad faith, the presumption of good faith remains.

1.1.2 The appellee has the right of retention until reimbursement of P616,000.00 covering necessary and useful expenses. The plaintiff-appellee based on the Contract to Sell proved that she is a possessor in the concept of an owner. The appellee is in actual possession of the property, her right of possession was only interrupted when the appellant forcibly accupied the property on August 14, 2010. The additional construction made by the appellee is an act of adverse possession. Incident to the right as lawful possessor, is the incurrence of necessary and useful expenses to make the property habitable, convenient, sanitary and safe. Article 546 provides that necessary expenses shall be refunded to every possessor, more particularly if he is in good faith, he is entitled not only to necessary expenses but also to useful expenses he incurred to the property as improvement thereon. The Court a quo is right when it ruled that the appellee has the right of retention until she is reimbursed the amount of P 616,000.00 as lawful possessor. AS TO THE SECOND ISSUE: Under Rule 70, Sec. 1, Rules of Court, Forcible entry is a summary action to recover material and physical possession of real property when a person originally in possession was deprived thereof by FORCE, INTIMIDATION, STRATEGY, THREAT and STEALTH. In Maddammu vs. Court, 74 Phil. 230 it was held that the issue involved is mere physical possession (possession de facto) and not juridical possession (possession de jure) nor ownership. In Domalsin vs. Sps. Valenciano G.R. No. , the determining facts to consider who has the right of possession is based on who has prior possession and not the one who is in actual possession thereof.

Appellants can reasonably be concluded that they employ force and strategy to deprive plaintiff-appellee of the possession of the real property in question. In Sumulong vs. CA, 232 SCRA 372 the Court ruled that, the word strategy could only mean, for purposes of Section 1, Rule 70 of the Revised Rules of Court, any machination or artifice designed to withhold from another possession of real property. In the case of the appellant, he employed such machination as contemplated in the meaning of strategy when he unlawfully entered the premises, changed the locks and prohibited the mother of the plaintiff and her caretaker from entering the premises. Appellant entered the premises through force: In Manalac vs. Olegario, et. Al CA 43 0.6 2169 force may prove expressly or by implication. The act of entering into the premises and excluding the lawful possessor therefrom necessarily implies the exertion of force over the property. In Bishop of Lipa vs. Municipality of San Jose, 27 PHIl 571 force may be done to overt possessor; or if occupied during the latters absence, done to prevent his getting back the premises. AS TO THE THIRD ISSUE: Appellants were not entitled to possession: Under Article 538, Possession as a fact cannot be recognized at the same time in two different personalities except the case of co-possession. Should a question arise regarding the fact of possession, the present possessor shall be preferred; if the dates of the possession In this case the plaintiff should be considered as the present possessor as she was unlawfully deprived of possession through force and strategy by the defendant. Under Article 531, Possession is acquired It is explicit in the facts stated that plaintiff immediately took possession of the property in question upon the execution of the Contract to Sell on August 4, 2009 until August 14, 2010, when she was unlawfully deprived possession thereof.

Defendants contend that the plaintiff abandoned the property the reason why they gained entrance to the same but to uphold such contention one of the requisites for abandonment as provided in the case of U.S. vs. Rey, 8 Phil 500 there must be no more ipes recuperandi ( expectation to recover and no more animus revertendi (intent to return or get back) on the part of the adandoner.

Sec. 17, Rule 70 of Rules of Civil Procedure allows attorneys fees in cases where the cause or causes are so untenable as to amount to gross and evident bad faith. Because of the unjustified, unlawful and forceable entry of defendant-appellant on the subject property, plaintiff-appellee had been constrained to institute the instant suit for which she retained the services of counsel for the sum of P50,000.00 and is bound to pay on appearance fee of P4,000.00 for every scheduled hearing to protect the plaintiff-appellees interest over the said subject property. Under Article 1385, Defendants contention is that the contract to sell has already been rescinded. The party who can demand recission must be in a position to return whatever he may be obliged to return to the other party. A party who has not performed his part of the obligation cannot rescind. (Marvin vs. Adil 130 SCRA 406).