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Republic of the Philippines

REGIONAL TRIAL COURT


National Capital Judicial Region
BRANCH 132
Makati City, Metro Manila

WEST OF AYALA CONDOMINIUM


CORPORATION,
Plaintiff,

- versus – Civil Case No. 13-1406

TOSHIO MUTO, LOURDES DAYAO, AND


MERIDIEN HIGHRISE DEVELOPMENT
CORP.,
Defendants.
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JUDICIAL AFFIDAVIT
JUDICIAL AFFIDAVIT OF ALMA VILARISCO
IN THE FORM OF QUESTION AND ANSWER

This is the testimonial AFFIDAVIT of ALMA VILLARISCO, in question and answer form
which was taken before Atty. Amer I. Macapundag on January 5, 2017 at Unit 108, First Capital
Condominium, 119 Rada St., Legaspi Village, Makati City pursuant to the Supreme Court
Administrative Circular No. A.M. No. 12-8-8-SC.

OFFER OF TESTIMONY

The testimony of ALMA VILLARISCO is being offered to prove the material allegations of
defendant Toshio Muto’s defense and counterclaim against the above-named West of Ayala
Condominium Corporation (“West of Ayala”, for brevity), more particularly as follows:

1. That West of Ayala caused the foreclosure and public auction of Condominium
Certificate of Title (“CCT”) No. 65214 which covers Unit Ph-3505 of the West of Ayala
Condominium whereby defendant Toshio Muto (“MUTO”, for brevity) was the winning
bidder;
2. That prior to the foreclosure of the Unit Ph-3505 (hereafter, the “Unit”) in MUTO’s favor,
the Makati City Government had already forfeited and acquired the Unit in a public
auction for non-payment of realty taxes;
3. That without proper verification as to whether CCT No. 65214 could properly be the
object of a sale and without notice to MUTO that the Makati City Government already
owned the Unit, MUTO paid West of Ayala P2,100,000.00;
4. That it was impossible for MUTO to consolidate title over the Unit because the Makati
Treasurer’s/Assessor’s Office refuses to accept payment for unpaid taxes and refuses to
issue a tax clearance which is a condition for the transfer of title in MUTO’s favor;
5. That the foreclosure of Unit in favor of MUTO was an exercise in futility because
ownership and possession of the Unit was impossible-it had already been acquired by
the Makati City Government and had continuously been occupied by defendant Lourdes
Dayao (“DAYAO”, for brevity); and
6. That to correct the injustice, West of Ayala should return the PhP2,100,000.00 paid by
MUTO to West of Ayala plus interests.

1. State your name and other personal circumstances.


A: I am Alma Villarisco, Filipino, age 31, with address at 1580 Gen. P. Santos St., Brgy.
Bangkal Makati City.

2. What is your relation, if any, to any of the parties in this case?

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A: From January 2013 to December 2015, I was the executive assistant of Land8 Inc.
which attempted to assist the defendant Mr. Toshio Muto in transferring the title to
Condominium Unit Ph-3505 of the West of Ayala Condominium. I am testifying in
connection with documents and information which I came to know or obtained relative
to this case.

3. What assistance did you, if any, render MUTO?


A: Upon instructions of Mr. Toshihiro Suemasa, I assisted MUTO with the hope of 1) having
the title to Unit Ph-3504 transferred in his name and in 2) exploring means of taking
possession of the Unit. I assisted MUTO in causing the annotation of the foreclosure of
the Unit in his favor in Condominium Certificate of Title (CCT) No. 65214 which covers
Unit Ph-3504 of the West of Ayala Condominium. I also made verifications with the
Makati Assessor’s Office with the hope of obtaining a tax clearance which is a
requirement for the transfer of title in MUTO’s favor.

4. Who is Mr. Suemasa?


A: Mr. Toshihiro Suemasa was my boss at Land8 Inc., which assisted MUTO who sought
the assistance of Land8 Inc., with respect to Condominium Unit No. Ph-3504 of the West
of Ayala Condominium. MUTO was out of the country most of the time so that he relied
on me and Mr. Suemasa to assist him regarding his concerns over the Unit.

5. What did you find out, if any, in the course of your verifications?
A: I learned that Meridien Highrise Development Corporation which happens to be one of
the defendants in the case, was and continues to be the registered owner of Unit Ph-
3504 of the West of Ayala Condominium. Also, the Unit was sold at an extrajudicial
foreclosure sale in favor of MUTO. A copy of the Certificate of Sale granting in favor of
MUTO the award of the foreclosure sale of the Unit is hereto attached as Exhibit “2-
Muto”.

6. Why did Mr. Suemasa give you instructions to verify about the status of CCT No. 65214?
A: Mr. Suemasa wanted to help Mr. Muto to transfer the title in Mr. Muto’s favor so Mr.
Suemasa gave me instructions to work on the documentation needed to effect the
transfer of title in favor of Mr. Muto.

7. What happened, if any, to your efforts in transferring title of the condominium unit to
Mr. Muto?
A: I helped Mr. Muto annotate with the Registry of Deeds the fact of foreclosure of the Unit
in his favor. A copy of the certified true copy of CCT No. 65214 showing the annotation
of the foreclosure sale in favor of Mr. Muto is hereto attached as Exhibit “3-Muto”.
However, I was shocked to find out that the condition of CCT No. 65214 was such that
even with the annotation of the foreclosure sale in the title, it was impossible for Mr.
Muto to consolidate ownership and be the registered owner even before the unit was
extrajudicially foreclosed in his favor.

8. Why was Unit 3504 extrajudicially foreclosed in favor of Mr. Muto?


A: The title itself shows that on June 5, 2008, the unit was extrajudicially foreclosed due to
accumulated assessments against its occupant, Ms. Lourdes Dayao.

9. Why is it an impossibilty for Mr. Muto to be the registered owner of the Unit even before
the unit was extrajudicially foreclosed in his favor on June 5, 2008?
A. One of the requirements for the transfer of title is a tax clearance from the Assessor’s
Office which refuses to issue the needed tax clearance. This is because prior to the
extrajudicial foreclosure in favor of Mr. Muto in 2008, the Makati City Government had
already forfeited the Unit in 2006, due to delinquency in payment of real property taxes.
Even with the annotation of the foreclosure sale of the Unit, MUTO cannot consolidate
title due to the impossibility of obtaining a tax clearance.

10. When you were told at the Assessor’s Office that they will not issue a tax clearance,
what step did you take, if any?

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A: I inquired how much real property tax was due on the Unit and I even offered to settle
the tax delinquency in behalf of MUTO. However, the Assessor’s Office refused to give a
computation on the real property taxes due on the property and I was even told that
they will not accept payment of real property taxes because based on their records, the
Unit is owned by the Makati City Government.

11. What steps, if any, did you take after you were told that the Makati City Government
was the owner of the unit.
A: I obtained a certified true copy of Tax Declaration No. 12295 over the Unit, a copy of
which is attached as Exhibit “4-Muto” bearing the following annotation:

“AUCTIONED
Date: 5-24-06 P186,138.23
WINNING BIDDER: CITY GOV`T OF MAKATI
WITH ONE YEAR REDEMPTION PERIOD SEC. 179 RA 7160”

12. The annotation in Tax Declaration No. 12295 shows that there is a one-year redemption
period. When does the redemption period end?
A: Since it appears that the unit was auctioned on May 24, 2006, the one-year redemption
period ends on May 23, 2007 which means that, by this time, ownership over the unit
had consolidated in favor of the Makati City Government.

13. What is the implication, if any, of the annotation in the Tax Declaration stating that the
Unit was auctioned on May 24, 2006 in favor of the Makati City Government considering
that the Unit was later extrajudicially foreclosed in favor of Mr. Muto on June 5, 2008?
A: When West of Ayala caused the extrajudicial foreclosure of the Unit on June 5, 2008,
the Makati City Government was already the owner of the Unit since May 23, 2007.
Unknown to MUTO, he had purchased at public auction a property which was not
capable of being owned by him.

14. You said that you also assisted Mr. Muto in taking possession of the Unit. What
happened to your efforts, if any?
A: Together with Mr. Suemasa, we went to see Mr. Jaimee Hernan, administrator of the
West of Ayala Condo Corporation, to inquire how it could be possible for Mr. Muto to
gain possession of his unit. We were told that Mr. Muto first had to settle the
assessments by the West of Ayala Condo Corporation for unpaid obligations of DAYAO,
the occupant, which accumulated through the years. To our great surprise, West of
Ayala filed this case with MUTO as one of the defendants while we were exploring
means of transferring title and possession of the Unit.

15. What was your reaction when told that Mr. Muto first had to settle the assessments by
the West of Ayala Condo Corporation for the unpaid obligations of DAYAO?
A. I believe that it was grossly unfair and unjust to make Mr. Muto liable for the
assessments made by Plaintiff for association dues and utilities for the simple reason
that it was impossible for him to become the owner of the Unit which is owned by the
Makati City Government.

16. Why is this grossly unfair and unjust?


A: The Assessor’s Office refuses to assess real property taxes nor receive payment of taxes
because the Makati City Government is the owner of the Unit. I find it extremely unfair
and unjust for West of Ayala to require Mr. Muto to pay for assessments for association
dues and utilities on a property which can never be his. In the first place, it was West of
Ayala which enticed the general public to part with money for the extrajudicial
foreclosure of a property which, unknown to them, can never be theirs. There appears
to be no object of the property on sale.

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17. So are you saying that West of Ayala caused the foreclosure sale of a property which
cannot be the object of a sale?
A: Yes. When Mr. Muto paid the amount of P2,100,000.00 to West of Ayala, West of Ayala
sold a property which was already owned by the Makati City Government. In other
words, West of Ayala received money from Mr. Muto for a property which could never
be his. Certainly, it was unfair and unjust for West of Ayala to have gained
P2,100,000.00 from Mr. Muto for a property which he could not own. To make Mr. Muto
again liable for new assessments against the condominium unit will further prejudice Mr.
Muto. West of Ayala should correct this injustice.

18. What do you think should West of Ayala do, if any, to correct this injustice?
A: Before West of Ayala caused the foreclosure sale of the Unit to the public in 2008, it did
not bother to verify whether the real property taxes duly paid for and whether title to
the property was legally capable of being transferred to bidders. This, I believe also
constitutes a deception to the public, in particular, to Mr. Muto before placing a property
in a public auction. To correct the injustice, it is just right that West of Ayala return to
Mr. Muto money, plus interests earned through the years, for money collected from him
by West of Ayala for Unit Ph-3504 which he can never own in the first place.

19. What happened, if any, to your attempts in helping MUTO gain possession of the Unit?
A: It was impossible for MUTO to claim possession of the Unit because he cannot
consolidate title in his name because the Unit is already owned by the Makati City
Government. Moreover, DAYAO has been in continuous possession of the Unit and
MUTO cannot present a title which he can use in order to evict DAYAO from the
premises.

20. What did you learn, if any, in the course of trying to help negotiate with plaintiff West of
Ayala for the possible transfer of title of the unit in favor of Mr. Muto?
A. When we met with Mr. Jaimee Hernan, administrator of West of Ayala, we were
provided copies of Statements of Accounts they issued against Ms. Lourdes Dayao for
her unpaid obligations. It must be noted that the Statements of Account were issued
was addressed to Lourdes Dayao. I found it unfair that MUTO was being charged for
expenses which he did not incur for himself. MUTO was never in possession nor
ownership of the Unit and he can never be the owner of the Unit. There is no basis for
West of Ayala to make MUTO nor the Unit liable for assessments issued by West of
Ayala against DAYAO.

21. Who should be liable for the assessments?


A. Plaintiff itself should be blamed for the accumulation of the charges it seeks against
defendants, as it is very well known that as the condominium corporation in charge of
the administration of the utilities, West of Ayala should have taken steps such as cutting
off the electricity and the water from the time it had knowledge of the failure of
defendants DAYAO and/or MERIDIEN to pay the electricity and water bills. Plaintiff,
however, continued to allow said defendants to enjoy these utilities without paying for
them. Stated otherwise, had Plaintiff cut-off the access to the electricity and the water,
or at least initiated the proper legal remedies, the charges would not have ballooned to
the level sought in the Plaintiff’s Complaint. Moreover, should West of Ayala have
verified on the status of payment of realty taxes on the Unit and had it known that the
Makati City Government was already the owner of the Unit, it would not have caused
the foreclosure sale in the first place, in deference to the Makati City Government.

22. You learned that before Mr. Muto bought the unit in a public auction, the Makati City
Government had already acquired the unit due to non-payment of realty taxes. What
relation, if any, do taxes have in relation to this case?
A. Plaintiff West of Ayala`s Master Deed with Restrictions itself, which referred to and cited
by the Plaintiff in paragraph 8, page 6 of its Complaint (Exhibit “5-Muto”), provides in
Part II,- Declaration of Restrictions, particularly in Section 11 (j) (i), the following:

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“j) When a Notice of Assessment has been recorded, such assessment shall constitute
a lien on each respective unit prior and superior to all liens except

i) all taxes, bonds assessments and other levies, which by law, would be superior
thereto….”

23. What is the relevance of the said Plaintiff’s Master Deed with Restrictions?
A. Obvious from the foregoing provisions of the Master Deed with Restrictions is that
Plaintiff`s very own Master Deed with Restrictions recognizes that its assessments
should give way to all taxes which attach to the Unit as a lien superior to those provided
under Plaintiff`s Master Deed with Restrictions. Plaintiff cannot feign ignorance of its
obligation to verify the existence of real property tax liens which have attached to the
property, in violation of its own Master Deed with Restrictions, before causing the
foreclosure sale of the Unit.

24. Why should have West of Ayala conducted verification on the status of the payment of
realty taxes on the Unit before causing the foreclosure sale?
A. The verification is important to determine whether the Unit was capable of being the
object of a sale at public auction. Real property taxes remain unpaid since 2006 yet
Plaintiff West of Ayala, as the administrator/manager of the condominium corporation,
did not even bother to make the crucial verification before causing the public auction of
the Unit in 2008. The Certificate of Sale issued to MUTO is a worthless piece of paper
because, as explained above, he can never be the registered owner of the Unit even if
he parted with PhP2,100,000.00 in favor of West of Ayala.

25. In closing, what would you like to appeal to this Court?


A. I ask that the Court will not allow the history of injustice to repeat itself. If the Court
allows the complaint filed by West of Ayala to prosper and the Unit is again foreclosed,
there will be another hapless victim like MUTO, a winning bidder who is not aware that
the property he just bought is not capable of being registered in his name. This Court
should not allow the Unit to be foreclosed again, in deference to the Makati City
Government. Finally, I ask that West of Ayala be required to correct the injustice by at
least returning the PhP2,100,000.00 paid by MUTO.

26. Why are you executing this Affidavit?


A. I am executing this Affidavit to attest to the truth of the foregoing facts and to serve as
my direct testimony in connection with the above-mentioned case.

IN WITNESS WHEREOF, I have hereunto affixed my signature this day of __________


at ______________________.

ALMA VILLARISCO
Affiant

SUBSCRIBED AND SWORN to before me this day of _______ at____________, affiants


exhibiting to me her valid governmental ID with the following details:
_________________________________________________.

Doc. No. _____;


Page No. _____;
Book No. _____;
Series of 2018. NOTARY PUBLIC

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ATTESTATION

I hereby attest that I, as the lawyer conducting this examination, have faithfully
recorded or caused to be recorded the questions I asked and the corresponding answers that
the witness gave; and, neither I nor any other person then present or assisting me coached the
witness regarding the latter's answers. I am also aware that a false attestation shall subject me
to disciplinary action, including disbarment.

ATTY. AMER I. MACAPUNDAG

SUBSCRIBED AND SWORN to before me this day of ________ at _____________,


affiants exhibiting to me his valid governmental ID with the following details: _________ valid
until _________.

Doc. No. _____;


Page No. _____;
Book No. _____;
Series of 2018. NOTARY PUBLIC

Copy Furnished:
CAYANGA ZUNIGA & ANGEL LAW OFFICES
Counsel for Plaintiff West of Ayala Condominium Corporation
2/F One Corporate Plaza, 845 Arnaiz Ave.
Legaspi Village, Makati City

EDUVANE UY & CRUZ LAW OFFICE


Counsel for Defendant Meridien High Rise
Development Corporation
21st Floor Pacific Star Bldg.,
Sen Gil Puyat Ave. cor. Makati Ave.,
Makati City

PERLAS DE GUZMAN AND PARTNERS


Counsel for Defendant Lourdes Dayao
Suite 3302-C West Tower Philippine Stock Exchange Center
Exchange Road, Ortigas Center Pasig City

City Legal Office


Makati City Government
J. P. Rizal Street, Brgy Poblacion
Makati City 1200