ANSWER-----Page 1 of 8

Republic of the Philippines

8th JUDICIAL REGION
Regional Trial Court
Branch ______
Tacloban City

RICARDO M. DALISAY
Plaintiff,

-versus- Civil Case No. _______

For: COLLECTION
FOR A SUM OF
MONEY WITH
DAMAGES
VICTOR S. MAGTANGGOL
Defendant.
x-----------------------------------------------x

ANSWER
(With Affirmative Defenses and Compulsory
Counterclaim)

COMES NOW, the Defendant Victor S. Magtanggol, thru the

undersigned counsel, most respectfully avers that:

1. On December 10, 2018, defendant received a Summons issued

by the Honorable Court together with the copy of Complaint
requiring the defendant within a period of fifteen (15) days
from receipt thereof or until December 25, 2018, to file an
answer to the complaint;

2. The same defendant can be served orders, notices, and other

court processes at his address or through the office address of
his counsel at DVOREF Magkarit Law Offices, Calanipawan
Road, Tacloban City, Philippines;

ADMISSIONS AND DENIALS

3. The allegations in paragraphs 1 and 2 of the Complaint

regarding the personal circumstances of defendant are
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admitted. Defendant further alleges that he has capacity to sue

or be sued;

4. Paragraph 3 of the Complaint is specifically denied insofar as it

alleges that the defendant owes the plaintiff a sum of money
and fails to pay the same, the truth being those alleged in the
affirmative defenses discussed below;

5. The allegation of paragraphs 4 to 8 of the Complaint are denied

for lack of knowledge or information sufficient to form a belief
as to the veracity or falsity thereof, the allegations therein being
matters known only to and are within the control only of the
plaintiff;

AFFIRMATIVE DEFENSES

There is no cause of action

6. Contrary to the allegations of the Plaintiff, the Defendant and the
Plaintiff did not see each other on May 20, 2018 because the former
was on his way to Manila as early as 6 AM, as evidenced by a copy
of his round trip plane ticket attached herein as “Annex 1” and
boarding pass attached herein as “Annex 2”, and made an integral
part thereof. This will prove that there is no way Plaintiff and
Defendant met on the aforementioned date.

7. The Plaintiff never gave the defendant the alleged amount of Five
Hundred Fifty Thousand Pesos (₱500,000.00) and that Defendant did
not sign the alleged promissory note on May 20, 2018 because as
discussed above, he was in Manila.

8. In that premise, there is no cause of action to the instant case because

there is no existing debt to begin with.

9. A cause of action is defined under Section 2 of the Rules of Court as

“the act or omission by which a party violates a right of another”.
The Supreme Court enumerated the essential elements of a
cause of action in Soloil Inc. vs. Philippine Coconut Authority
which are, to wit:

(1) a right in favor of the plaintiff by whatever means and

under whatever law it arises or is created
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(2) an obligation on the part of the named defendant to respect

or not to violate such right; and

(3) an act or omission on the part of such defendant in violation

of the right of the plaintiff or constituting a breach of the
obligation of the defendant to the plaintiff for which the latter
may maintain an action for recovery of damages or other
appropriate relief.1

10.In the case at bar, no right to demand a sum of money was

created because there was no debt to begin with. No obligation
to respect a right was established since Defendant has not
borrowed money from Plaintiff. There is also absence of act or
omission that constitute a breach of obligation.

11.Rule 16, Section 1 of the Rules of Court enumerated the

grounds for dismissal of the complaint, one of which, inter alia,
is: (g) That the pleading asserting the claim states no cause of action.
Hence, the instant case against Plaintiff must be dismissed for
lack of cause of action.

The Plaintiff has no capacity to sue

12.The Supreme Court emphasized in Evangelista vs. Santiago2 that

“Among the grounds for a motion to dismiss under the Rules of
Court are lack of legal capacity to sue and that the complaint
states no cause of action. Lack of legal capacity to sue means
that the plaintiff is not in the exercise of his civil rights, or does
not have the necessary qualification to appear in the case, or
does not have the character or representation he claims. On the
other hand, a case is dismissible for lack of personality to sue
upon proof that the plaintiff is not the real party-in-interest,
hence grounded on failure to state a cause of action. The term
"lack of capacity to sue" should not be confused with the term
"lack of personality to sue." While the former refers to a
plaintiffs general disability to sue, such as on account of
minority, insanity, incompetence, lack of juridical personality
or any other general disqualifications of a party, the latter refers
to the fact that the plaintiff is not the real party- in-interest.

1
GR No. 174806, August 11, 2010
2
G.R. No. 157447. April 29, 2005
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Correspondingly, the first can be a ground for a motion to

dismiss based on the ground of lack of legal capacity to sue;
whereas the second can be used as a ground for a motion to
dismiss based on the fact that the complaint, on the face thereof,
evidently states no cause of action.”

13.Rule 16, Section 1 paragraph (d) of the Rules of Court states to

wit:
“Section 1. Grounds- Within the time for but before
filing the answer to the complaint or pleading asserting a claim,
a motion to dismiss may be made on any of the following
grounds:

xxx

(d) That the Plaintiff has no legal capacity to sue;

x x x”

14.The Plaintiff failed to allege in the Complaint whether he has

capacity to sue or be sued. He failed to assert in his pleading his
capacity to institute the herein case which is a necessary
requirement to determine whether it can proceed to trial on the
merits. With the lack thereof, dismissal of the instant case shall
warrant.

No indication whether the Complaint was properly

filed and Served to the Court and Defendant

15.Section 11, Rule 13 of the Rules of Court provides for the

Priorities in modes of service and filing, to wit:

“Section 11. Priorities in modes of service and filing- Whenever

practicable, the service and filing of pleadings and other papers
shall be done personally. Except with respect to papers
emanating from the court, a resort to other modes must be
accompanied by a written explanation why the service or filing
was not done personally. A violation of this Rule may be cause
to consider the paper as not filed.”

16.It is noteworthy that Plaintiff failed to indicate the fact of

service and filing of the Complaint to the Court and the
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Defendant. He did not specify what mode of service and filing

he resorted into, whether it is personally made or by registered
mail. Neither was the Complaint accompanied with a written
explanation why the service of filing was not done personally,
if that was the case.

17.Plaintiff has violated a basic procedural rule on the filing and

service of pleadings. That being said, the instant Complaint for
Collection of Sum of Money shall not be considered filed for all
purposes and shall not bind Defendant whatsoever.

No sufficient proof of bad faith was provided by Plaintiff

To warrant the award of Moral Damages

18.Under Article 2220 of the Civil Code, moral damages may be

awarded in cases of breach of contract provided that there was
fraud or bad faith, to wit:

“Art. 2220. Willful injury to property may be a legal ground

for awarding moral damages if the court should find that, under
the circumstances, such damages are justly due. The same rule
applies to breaches of contract where the defendant acted
fraudulently or in bad faith.”

19.To recover moral damages in an action for breach of contract,

the Supreme Court held in Adriano vs. La Sala, G.R. No.
197842, October 9, 2013 that a breach must be palpably wanton,
reckless and malicious, in bad faith, oppressive, or abusive.
Hence, the person claiming bad faith must prove its existence
by clear and convincing evidence for the law always presumes
good faith. Bad faith does not simply connote bad judgment or
negligence. It imports a dishonest purpose or some moral
obliquity and conscious doing of a wrong, a breach of known
duty through some motive or interest or ill will that partakes of
the nature of fraud. It is, therefore, a question of intention,
which can be inferred from one’s conduct and/or
contemporaneous statements.

20.In the case at bench, the burden of proving bad faith on the part
of defendant was vested on the Plaintiff. However, there was
no clear and convincing evidence shown by the latter to
persuade the Honorable Court that there was indeed malice on
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the act of the Defendant, since there was none in the first place.
All of its accusations against Defendant are based on surmises
and conjectures with no backbone to corroborate it. Thus, the
award of moral damages to Plaintiff does not warrant.

COMPULSORY COUNTERCLAIM

21.By reason of the abuse of right committed by the Plaintiff and

by reason of the instant precipitate and unfounded suit, the
defendant was constrained to hire the services of a lawyer to
defend his rights and interests for a professional fee of Twenty-
Thousand Pesos (₱20,000.00) and Three Thousand Pesos
(₱3,000.00) per court appearance;

22.Similarly, the plaintiff’s unfounded suit has caused the

defendant mental anguish, wounded feelings, sleepless nights,
serious anxieties, and other similar sufferings for which the
defendant claims moral damages of Fifty Thousand Pesos
(₱50,000.00).

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this

Honorable Court to dismiss the complaint for lack of merit with costs
against the plaintiff and that the defendant’s compulsory
counterclaim be granted, i.e., moral damages of Fifty Thousand Pesos
(₱50,000.00), attorney’s fees of Twenty-Thousand Pesos (₱20,000.00),
and Three Thousand Pesos (₱3,000.00) per court appearance and
costs of suit. Other reliefs just and equitable under the premises are
likewise prayed for. RESPECTFULLY SUBMITTED. Tacloban City.
December 18, 2018.

ATTY. GIKA KARITI

DVOREF Magkarit Law Offices
Counsel for the Defendant
Calanipawan Road, Tacloban City
IBP No. 1234 /01-09-18/ Tacloban City
PTR No. 5678910/1-09-18/Tacloban City
MCLE No. I-0012345/ April 8, 2018
Roll of Atty.’s No. 59785, April 1, 2017
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Copy Furnished: (By Personal Service)

ATTY. ACE D. CORPUZ

Justice Romualdez St., Tacloban City

By: ______________________________ Dated: ___________________

Explanation

Pursuant to Section 11, Rule 13 of the Rules of Court,

SERVICE/FILING of the foregoing Answer was made thru
REGISTERED MAIL, SERVICE/FILING are not practicable due
to manpower, distance and time constraints. (Ignore if
personally served/filed.)

ATTY. GIKA KARITI

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VERIFICATION/CERTIFICATION OF NON-FORUM SHOPPING

Republic of the Philippines)

Tacloban City…………………….) S.S.

I, VICTOR S. MAGTANGGOL, of legal age, married, Filipino

citizen, and resident of Brgy. 87, San Jose, Tacloban City, Leyte,
Philippines, after being duly sworn in accordance to law, hereby
depose and say;

1. That I am the defendant in the above-entitled case; I have

caused the preparation and filing of the foregoing Answer; I have
read and fully understood the contents of the same and the contents
hereof are true and correct to my personal knowledge and based on
authentic records;

2. That I have not commenced any other action or proceeding

involving the same issues before the Court of Appeals, or the
Supreme Court or any other tribunal or agency and to the best of my
knowledge and belief, no other action or proceeding is pending in the
Supreme Court, the Court of Appeals, or any other tribunal or
agency, and that if there is any such other action or proceeding which
is either pending or may have been terminated, I understood that I
must state the status thereof; and if should I thereafter learn that a
similar action or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or any other tribunal or
agency, I undertake to report that fact within five days therefrom to
the Honorable Court wherein the original pleading and sworn
certification contemplated herein have been filed. IN WITNESS
WHEREOF, I hereunto set my hand this December 17, 2018 in
Tacloban City, Leyte, Philippines.

VICTOR S. MAGTANGGOL
Affiant

SUBSCRIBED AND SWORN TO before me this December 17, 2018 in

Tacloban City, Philippines, affiant acknowledging to me that the
same is her voluntary act and she personally showed to me her
competent evidence of identity being her AV ID No. 123456789.

Doc. No. ______

Page No. ______
Book No._______
Series of 2018.