REPUBLIC ACT NO. 8484 In sum therefore, the above omission is made punishable if the following elements occur.
is made punishable if the following elements occur. One, there is
(The Access Device Regulation)
An act regulating the issuance and use of access devices, prohibiting fraudulent acts committed relative
thereto, providing penalties and for other purposes.
The recent advances in modern technology have led to the extensive use of certain devices in
commercial transactions, prompting the State to regulate the same. Hence, on February 3, 1998,
Congress enacted Republic Act Number 8484, otherwise known as The Access Devices Regulation Act of
1998.
Termed as “access devices” by RA No. 8484, are any card, plate, code, account number, electronic serial
number, personal identification number, or other telecommunication service, equipment, or instrumental
identifier, or other means of account access that can be used to obtain money, good, services or any
other thing of value or to initiate transfer of funds (other than transfer originated solely by paper
instrument).
Thus, access device is now subject to regulation. The issuance and use of access devices are ought to be
regulated in order to protect the rights and define the liabilities of parties in commercial transactions
involving them.
ACTS PUNISHABLE
Essentially, the law imposes duties both to the access device issuer and holder, and penalize certain acts
deemed unlawful for being detrimental to either the issuer or holder, or both.
The law mandates an access device issuer, or “card issuer,” to disclose either in writing or orally in any
application or solicitation to open a credit card account the following:
1) annual percentage rate;
2) annual and other fees;
3) and balance calculation method;
4) cash advance fee; and
5) over the limit fee.
Moreover, the computation used in order to arrive at such charges and fees required, to the extent
practicable, to be explained in detail and a clear illustration of the manner by which it is made to apply is
also necessary.
Nonetheless, there are certain exceptions for the above requirement of disclosure not to apply. This is
when application or solicitation is made through telephone, provided that the issuer does not impose
any annual fee, and fee in connection with telephone solicitation unless the customer signifies acceptance
by using the card, and that a clear disclosure of the information enumerated in the preceding paragraph
is made in writing within thirty (30) after the consumer requests for the card, but in no event later than
the date of the delivery of the card, and that the consumer is not obligated to accept the card or account
and the consumer will not be obligated to pay any fees or charges disclosed unless the consumer accepts
the card or account by using the card.
Failure on the part of the issuer to fulfill the above requirements will result in the suspension or
cancellation of its authority to issue credit cards, after due notice and hearing, by the Banko Sentral ng
Pilipinas, the Securities and Exchange Commission and such other government agencies.
an application or solicitation. Second, such application or solicitation should include the information
required by law. And third, failure on the part of the issuer to disclose such information.
In one case (Ermitano v. GR No. 127246, April 21, 1999), the SC had the occasion to rule on the validity
of contracts involving credit cards. The credit cards holder contended that the credit card
company should be blamed for the charges the same being unwarranted by the contract. As stipulated,
once a lost card has been reported, purchases made thereafter should not accrue on the part of the
holder.
The Court said, notwithstanding the fact that the contract of the parties is a contract of adhesion, the
same is valid. However, if the same should include terms difficult to interpret as to hide the true intent
to the detriment of the holder, holding it void requires no hesitation. Thus, contracts which provide for
ambiguous terms of payment, imposition of charges and fees may be held void invoking the principle of
the contract of adhesion. Clearly, in this case decided in 1999, the Court was concerned about an access
device issuer’s vulnerability to abuse the provisions of the contract. It is quite surprising, however, that
the Court did not make reference to RA No. 8484 to think that it was already in effect when the
resolution was promulgated.
Nonetheless, in American Express International Co., Inc. vs. IAC (GR NO. 70766, November 9, 1988) SC
turned down the argument of private respondent grounded on the adhesion principle saying “indeed, in a
contract of adhesion the maker of the contract has all the advantages, however, the one to whom it is
offered has the absolute prerogative to accept or deny the same”.
On the other hand, an access device holder may be penalized when he or she fraudulently applied for
such device. An access device fraudulently applied for means any access device that was applied for or
issued on account of the use of falsified document, false information, fictitious identities and addresses,
or any form of false pretense or misrepresentation. Thus, the use, trafficking in, possession, and
inducing, enticing or in any manner allowing one to use access device fraudulently applied for are
considered unlawful.
RA 8484 and FRAUD
The element of fraud is indispensable for this provision of RA 8484 to apply. It is a condition sine qua
non before one may be charged with the defined offense.
Thus, the law provides for Presumptions Of Intent To Defraud on the basis of mere possession, control or
custody of: a) an access device without lawful authority; b) a counterfeit access device; any device
making or altering equipment; c) an access device or medium on which an access device is written not in
the ordinary course of the possessor’s business; or d) any genuine access device, not in the name of the
possessor.
A card holder who abandons or surreptitiously leaves the place of employment, business or residence
stated in his application for credit card, without informing the credit card company of the place where he
could actually be found, if at the time of such abandonment or surreptitious leaving, the outstanding and
unpaid balance is past due for at least ninety (90) days and is more than ten thousand pesos (P10,000),
shall be prima facie presumed to have used his credit card with intent to defraud. At first glance, the
above presumptions, when applied in real cases, may suffer from constitutional infirmities. The
constitution provides that a person shall not be held to answer to a criminal offense without due process
of law. It may be argued that such presumptions are rebuttable ones. However, the danger lies in the
shifting of the burden of proof from the prosecution to the defense. The law provides for sixteen (16 –
from A to P) prohibited acts which refer to the production, use, possession of or trafficking in
unauthorized or counterfeit access devices. It also includes acts deemed fraudulent that increase the
amount involved in commercial transactions using access devices. Obtaining money or anything of value
through the use of an access device with intent to defraud or gain, and fleeing thereafter.
In the final analysis, the law basically seeks to address the issue of fraud in the issuance and use of
access devices, especially credit cards. Fraud may be committed by the issuer by making false or vague
information in the application or solicitation to open credit card accounts. The applicant or holder, on the
other hand, fraudulently misrepresents himself by giving wrong identity, false profession or employment,
or bloated income. Take the case for instance of Citibank v. Gatchalian (GR No. 111222, January 18,
1995) which shows how credit card applicants through false representation were able to amass in simple
terms P790,000 from petitioner.
In this case, two employees of the Asian-Pacific Broadcasting Co., Inc. (ABCI) applied for nineteen (19)
credit cards with Citibank using different names other than their real names. The Citibank approved the
applications and the credit cards were delivered to them for use. However, this case involves an illegal
dismissal case where a Citibank employee was found guilty of gross negligence for effecting the delivery
of the credit cards. Her dismissal was affirmed in this case.
Insofar as access device issuers are concerned, Ermitano v. C.A., may be a case in point. The credit card
holder lost his credit card which he immediately reported to the card issuer. The contract stipulated that
in case of lost, the same should be reported immediately, otherwise purchases made shall be charged to
the holder. In this case, despite the prompt reporting of the holder, the issuer still charged the
purchases against the former. The Court, thus held the issuer in breach of the contract. The penalties
provided for by RA 8484 are imprisonment and fine. Imprisonment is from six (6) years to ten (10)
years and fine ranges from ten thousand pesos (10,000) or twice the value of the offense, whichever is
higher. The penalties are increased in case the offender has a similar previous conviction, meaning if he
was previously found violating RA 8484. In which case, the accused shall suffer imprisonment of not less
than twelve (12) years and not more than twenty (20) years.
The two other stages of felony, as defined by the Revised Penal Code is also made punishable. Thus,
attempted and frustrated are meted out with the penalties of imprisonment and fine albeit only in
fractions of the above penalties.
Observation
R.A. 8484 may seem to favor the issuer. A credit card company may only be meted out the penalty of
cancellation or suspension, which may be considered as mere administrative sanctions. In fact, it is not
the courts which impose such sanctions but administrative agencies such as the Bangko Sentral and the
Securities and Exchange Commission. On the other hand, a holder or mere possessor of a counterfeit
fraudulently applied for access device may be convicted and be made to suffer imprisonment and fine.
JURISPRUDENCE:
LAUREL vs ABROGAR (RA 8484 mentioned in Obiter)
GR No. 155076; January 13, 2009
FACTS: Laurel was charged with Theft under Art. 308 of the RPC for allegedly taking, stealing, and
using PLDT's international long-distance calls by conducting International Simple Resale (ISR) – “a
method of outing and completing international long-distance calls using lines, cables, antennae, and/or
air wave frequency which connect directly to the local/domestic exchange facilities of the country where
the call is destined”. PLDT alleged that this service was stolen from them using their own equipment and
caused damage to them amounting to P20,370,651.92.
PLDT alleges that the international calls and business of providing telecommunication or telephone
service are personal properties capable of appropriation and can be objects of theft.
Did Laurel’s act constitute theft? NO.
Art.308, RPC: Theft is committed by any person who, with intent to gain but without
violence against, or intimidation of persons nor force upon things, shall take personal property of another
without the latter’s consent.
Elements of Theft under Art.308, RPC:
1. There be taking of Personal Property;
2. Said Personal Property belongs to another;
3. Taking be done with Intent to Gain;
4. Taking be done without the owner’s consent;
5. No violence against, or intimidation of, persons or force upon things
Personal Property – anything susceptible of appropriation and not included in Real Property.
Thus, the term “personal property” as used in Art.308, RPC should be interpreted in the context of the
Civil Code's definition of real and personal property. Consequently, any personal property, tangible or
intangible, corporeal or incorporeal, capable of appropriation may be the subject of theft (*US v Carlos;
US v Tambunting; US v Genato*), so long as the same is not included in the enumeration of Real
Properties under the Civil Code.
The only requirement for personal property to capable of theft, is that it be subject to appropriation.
Art. 416 (3) of the Civil Code deems “Forces of Nature” which are brought under the control of science,
as Personal Property. The appropriation of forces of nature which are brought under control by science
can be achieved by tampering with any apparatus used for generating or measuring such forces of
nature, wrongfully redirecting such forces of nature from such apparatus, or using any device to
fraudulently obtain such forces of nature.
In the instant case, the act of conducting ISR operations by illegally connecting various equipment or
apparatus to PLDT’s telephone system, through which petitioner is able to resell or re-route international
long-distance calls using PLDT’s facilities constitute Subtraction.
Moreover, interest in business should be classified as personal property since it is capable of
appropriation, and not included in the enumeration of real properties. Therefore, the business of
providing telecommunication or telephone service are personal property which can be the object of theft
under Art. 308 of the RPC. The act of engaging in ISR is an act of “subtraction” penalized under the said
article.
While international long-distance calls take the form of electrical energy and may be considered as
personal property, the said long-distance calls do not belong to PLDT since it could not have acquired
ownership over such calls. PLDT merely encodes, augments, enhances, decodes and transmits said calls
using its complex communications infrastructure and facilities.
Since PLDT does not own the said telephone calls, then it could not validly claim that such telephone calls
were taken without its consent.
What constitutes Theft is the use of the PLDT's communications facilities without PLDT's consent. The
theft lies in the unlawful taking of the telephone services & businesses. The Amended Information should
be amended to show that the property subject of the theft were services and business of the offended
party.
Mark SOLEDAD y Cristobal vs - People
G.R. No. 184274
Sometime in June 2004, Henry C. Yu [Yu] received a call on his mobile phone from a certain “Tess” or
“Juliet Villar” (later identified as Rochelle Bagaporo), a credit card agent, who offered a Citifinancing loan
assistance at a low interest rate. Enticed by the offer, private complainant invited Bagaporo to go to his
office in Quezon City. While in his office, Bagaporo indorsed Yu to her immediate boss, a certain “Arthur”
[accused Soledad]. In their telephone conversation, Soledad told private complainant to submit
documents to a certain “Carlo” (later identified as Ronald Gobenchiong). Yu submitted various
documents, such as his Globe handyphone original platinum gold card, identification cards and
statements of accounts. Subsequently, private complainant followed up his loan status but he failed to
get in touch with either Soledad or Ronald Gobenchiong.
During the first week of August 2004, private complainant received his Globe handyphone statement of
account wherein he was charged for two (2) mobile phone numbers which were not his. Upon
verification with the phone company, private complainant learned that he had additional five (5) mobile
numbers in his name, and the application for said cellular phone lines bore the picture of [petitioner] and
his forged signature. Private complainant also checked with credit card companies and learned that his
Citibank Credit Card database information was altered and he had a credit card application with
Metrobank Card Corporation (Metrobank).
Thereafter, Yu and Metrobank’s junior assistant manager Jefferson Devilleres lodged a complaint with the
National Bureau of Investigation (NBI) which conducted an entrapment operation.
During the entrapment operation, NBI’s Special Investigator (SI) Salvador Arteche [Arteche], together
with some other NBI operatives, arrived in Las Piñas around 5:00 P.M. Arteche posed as the delivery boy
of the Metrobank credit card. Upon reaching the address written on the delivery receipt, he asked for Yu.
Soledad responded that he was Henry Yu and presented to Arteche two (2) identification cards which
bore the name and signature of private complainant, while the picture showed the face of Soledad. He
signed the delivery receipt. Thereupon, Arteche introduced himself as an NBI operative and apprehended
Soledad. Arteche recovered from Soledad the two (2) identification cards he presented to Arteche
earlier.
Soledad was thus charged with Violation of Section 9(e), R.A. No. 8484 for “possessing a counterfeit
access device or access device fraudulently applied for.” The accusatory portion of the Information
reads:
That on or about the 13th day of August 2004, or prior thereto, in the City of Las Piñas, and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
with certain Rochelle Bagaporo a.k.a. Juliet Villar/Tess and a certain Ronald Gobenciong a.k.a. Carlo
and all of them mutually helping and aiding each other, did then and there willfully, unlawfully and
feloniously defraud complainant HENRY YU by applying a credit card, an access device defined under
R.A. 8484, from METROBANK CARD CORPORATION, using the name of complainant Henry C. Yu and
his personal documents fraudulently obtained from him, and which credit card in the name of Henry
Yu was successfully issued and delivered to said accused using a fictitious identity and addresses of
Henry Yu, to the damage and prejudice of the real Henry Yu. CONTRARY TO LAW.
Upon arraignment, Soledad pleaded “not guilty.” Trial on the merits ensued. After the presentation of
the evidence for the prosecution, he filed a Demurrer to Evidence, alleging that he was not in physical
and legal possession of the credit card presented and marked in evidence by the prosecution. The RTC
denied the Demurrer to Evidence as it preferred to rule on the merits of the case. Later, the RTC found
Soledad guilty as charged. On appeal, the CA affirmed Soledad’s conviction, but modified the penalty
imposed by the RTC by deleting the terms prision correccional and prision mayor.
Among the issues raised before the SC is the determination as to whether Soledad was legally in
“possession” of the credit card subject of the case. (sufficiency of evidence leading to his conviction)
Soledad avers that he was never in possession of the subject credit card because he was arrested
immediately after signing the acknowledgement receipt. Thus, he did not yet know the contents of the
envelope delivered and had no control over the subject credit card.
SC found no value in Soledad’s argument.
The trial court convicted him of possession of the credit card fraudulently applied for, penalized by R.A.
No. 8484. The law, however, does not define the word “possession.” Thus, we use the term as defined in
Article 523 of the Civil Code, that is, “possession is the holding of a thing or the enjoyment of a right.”
The acquisition of possession involves two elements: the corpus or the material holding of the thing, and
the animus possidendi or the intent to possess it.[12] Animus possidendi is a state of mind, the presence
or determination of which is largely dependent on attendant events in each case. It may be inferred
from the prior or contemporaneous acts of the accused, as well as the surrounding circumstances.
In this case, prior to the commission of the crime, Soledad fraudulently obtained from Yu various
documents showing the latter’s identity. He, thereafter, obtained cellular phones using Yu’s identity.
Undaunted, he fraudulently applied for a credit card under the name and personal circumstances of Yu.
Upon the delivery of the credit card applied for, the “messenger” (an NBI agent) required two valid
identification cards. Soledad thus showed two identification cards with his picture on them, but bearing
the name and forged signature of Yu. As evidence of the receipt of the envelope delivered, Soledad
signed the acknowledgment receipt shown by the messenger, indicating therein that the content of the
envelope was the Metrobank credit card.
He materially held the envelope containing the credit card with the intent to possess. Contrary to his
contention that the credit card never came into his possession because it was only delivered to him, the
above narration shows that he, in fact, did an active part in acquiring possession by presenting the
identification cards purportedly showing his identity as Henry Yu. Certainly, he had the intention to
possess the same. Had he not actively participated, the envelope would not have been given to him.
Moreover, his signature on the acknowledgment receipt indicates that there was delivery and that
possession was transferred to him as the recipient. Undoubtedly, petitioner knew that the envelope
contained the Metrobank credit card, as clearly indicated in the acknowledgment receipt, coupled with
the fact that he applied for it using the identity of private complainant.
Lastly, we find no reason to alter the penalty imposed by the RTC as modified by the CA. Section 10 of
R.A. No. 8484 prescribes the penalty of imprisonment for not less than six (6) years and not more than
ten (10) years, and a fine of P10,000.00 or twice the value of the access device obtained, whichever is
greater. Thus, the CA aptly affirmed the imposition of the indeterminate penalty of six years to not more
than ten years imprisonment, and a fine of P10,000.00.
ERMITAÑO vs. CA, BPI EXPRESS CARD CORP. (BECC)
G.R. No. 127246 April 21, 1999
In dispute is the validity of the stipulation embodied in the standard application form for credit cards
furnished by BECC. The stipulation makes the cardholder liable for purchases made through his lost or
stolen credit card until (a) notice of such loss or theft has been given to private respondent and (b) the
latter has communicated such loss or theft to its member-establishments.
FACTS: Ermitaño applied for a credit card from BECC on October 8, 1986 with his wife, Manuelita, as
extension cardholder. The spouses were given credit cards with a credit limit of P10,000. They often
exceeded this credit limit without protest from BECC. On August 29, 1989, Manuelita's bag was snatched
from her as she was shopping at the Greenbelt Mall in Makati, Metro Manila. Among the items inside the
bag was her BECC credit card. That same night she informed, by telephone, BECC of the loss. The call
was received by BECC offices through a certain Gina Banzon. This was followed by a letter dated August
30, 1989. She also surrendered Luis' credit card and requested for replacement cards. In her letter,
Manuelita stated that she "shall not be responsible for any and all charges incurred [through the use of
the lost card] after August 29, 1989.
However, when Luis received his monthly billing statement from BECC dated September 20, 1989, the
charges included amounts for purchases made on August 30, 1989 through Manuelita's lost card. Two
purchases were made, one amounting to P2,350.05 and the other, P607.50.
Manuelita received a billing statement dated October 20, 1989 which required her to immediately pay the
total amount of P3,197.70 covering the same (unauthorized) purchases. Manuelita again wrote BECC
disclaiming responsibility for those charges, which were made after she had served BECC with notice of
the loss of her card. Despite the spouses' refusal to pay and the fact that they repeatedly exceeded their
monthly credit limit, BECC sent them a notice dated December 29, 1989 stating that their cards had
been renewed until March 1991. Notwithstanding this, however, BECC continued to include in the
spouses' billing statements those purchases made through Manuelita's lost card. Luis protested this
billing in his letter dated June 20, 1990.
In his reply dated July 18, 1990, Luis stressed that the contract BECC was referring to was a contract of
adhesion and warned that if BECC insisted on charging him and his wife for the unauthorized purchases,
they will sue BECC for damages. This warning notwithstanding, BECC continued to bill the spouses for
said purchases. On April 10, 1991, Luis used his credit card to purchase gasoline at a Caltex station. The
latter, however, dishonored his card. In reply to Luis' demand for an explanation, BECC wrote that it
transferred the balance of his old credit card to his new one, including the unauthorized charges.
Consequently, his outstanding balance exceeded his credit limit of P10,000. He was informed that his
credit card had not been cancelled but, since he exceeded his credit limit, he could not avail of his credit
privileges. Once more, Luis pointed out that notice of the lost card was given to BECC before the
purchases were made. Subsequently, BECC cancelled the spouses' credit cards and advised them to
settle the account immediately or risk being sued for collection of said account. Constrained, petitioners
sued BECC for damages.
The trial court ruled in their favour, noting that the suspension of the spouses' credit cards was based
upon the "lame excuse" that the credit limit had been exceeded, despite the fact that BECC allowed the
spouses previously to exceed their credit limit, even for almost two years after the loss of Manuelita's
card. Moreover, the credit limit was exceeded only after BECC added the unauthorized purchases to the
liability of the spouses. BECC continued to send the spouses separate billing statements that included the
unauthorized purchases, with interest and penalty charges.
The trial court opined that the only purpose for the suspension of the spouses' credit privileges was to
compel them to pay for the unauthorized purchases. The trial court ruled that the latter portion of the
condition in the parties' contract, which states that liability for purchases made after a card is lost or
stolen shall be for the account of the cardholder until after notice of the loss or theft has been given to
BECC and after the latter has informed its member establishments, is void for being contrary to public
policy and for being dependent upon the sole will of the debtor.
Should the spouses be held liable for the unauthorized purchases allegedly incurred after
having reported the fact of loss of the related credit card? NO.
For the cardholder to be absolved from liability for unauthorized purchases made through his lost or
stolen card, two steps must be followed: (1) the cardholder must give written notice to BECC, and (2)
BECC must notify its member establishments of such loss or theft, which, naturally, it may only do upon
receipt of a notice from the cardholder. Both the cardholder and BECC, then, have a responsibility to
perform, in order to free the cardholder from any liability arising from the use of a lost or stolen card.
Manuelita, has complied with what was required of her under the contract with BECC. She immediately
notified BECC of the loss of her card on the same day it was lost and, the following day, she sent a
written notice of the loss to BECC. Having thus performed her part of the notification procedure, it was
reasonable for Manuelita — and Luis, for that matter — to expect that BECC would perform its part of the
procedure, which is to forthwith notify its member-establishments. It is not unreasonable to assume that
BECC would do this immediately, precisely to avoid any unauthorized charges.
BECC failed to notify promptly the establishment in which the unauthorized purchases were made with
the use of Manuelita's lost card. Thus, Manuelita was being liable for those purchases, even if there is no
showing that Manuelita herself had signed for said purchases, and after notice by her concerning her
card's loss was already given to BECC. The cardholder was no longer in control of the procedure after it
has notified BECC of the card's loss or theft. It was already BECC's responsibility to inform its member-
establishments of the loss or theft of the card at the soonest possible time. BECC is not a neophyte
financial institution, unaware of the intricacies and risks of providing credit privileges to a large number
of people. It should have anticipated an occurrence such as the one in this case and devised effective
ways and means to prevent it, or otherwise insure itself against such risk.
Prompt notice by the cardholder to the credit card company of the loss or theft of his card should be
enough to relieve the former of any liability occasioned by the unauthorized use of his lost or stolen card.
The questioned stipulation in this case, which still requires the cardholder to wait until the credit card
company has notified all its member-establishments, puts the cardholder at the mercy of the credit card
company which may delay indefinitely the notification of its members to minimize if not to eliminate the
possibility of incurring any loss from unauthorized purchases. Or, as in this case, the credit card company
may for some reason fail to promptly notify its members through absolutely no fault of the cardholder.
To require the cardholder to still pay for unauthorized purchases after he has given prompt notice of the
loss or theft of his card to the credit card company would simply be unfair and unjust. The Court cannot
give its assent to such a stipulation which could clearly run against public policy.
Bangko Sentral ng Pilipinas (BSP) Public Advisory on BSP Regulations on Bringing of Legal Tender Local
and Foreign Currencies into or out of the Philippines a Local Currency
Any individual (either Philippine residents or non-residents) is allowed to bring into or take out of the
Philippines up to PHP50,000 without prior written authorization from the BSP.
In excess of this amount, prior BSP written authorization should be secured. The BSP allows cross-border
transfer of local currency in excess of the limit only for the following purposes:
1. For testing/calibration of money counting/sorting machines; and
2. For numismatics (collectors of currency)/educational purposes.
Foreign Currency
There is no quantitative restriction as to the amount of foreign currency as well as other foreign
currency-denominated bearer monetary instruments (such as travelers’ checks, other checks, drafts,
notes, money orders, bonds) that may be brought into or taken out of the country.
But if the amount exceeds US$10,000 or its equivalent in other foreign currency, this must be declared in
writing (with information on the source and purpose of the transport of such currency or monetary
instrument) using the Bureau of Customs’ (BOC) prescribed Foreign Currency and Other Foreign
Exchange-Denominated Bearer Monetary Instruments Declaration Form. The BOC declaration form is
available at the BOC desk in the arrival/departure areas of all international airports and seaports in the
Philippines.
-----------------------
a Source: Section 4 of the BSP Manual of Regulations on Foreign Exchange Transactions (FX Manual), as
amended.