ACCION PUBLICIANA

Republic of the Philippines REGIONAL TRIAL COURT OF NEGROS OCCIDENTAL 6th Judicial Region Branch--- Bacolod City

Richard Chan, Plaintiff, - versus -

Civil Case No. ------

Jack Pasaway, Defendant. x-----------------------------x

ANSWER WITH COUNTERCLAIMS

COMES NOW the Defendant Jack Pasaway, represented by the undersigned counsels, before the Honorable Court, most respectfully submits this Answer with Counterclaims, averring that: ADMISSIONS AND DENIALS 1. The allegation in paragraph 1 of the Complaint for Accion Publiciana as to the personal circumstances of the Plaintiff Richard Chan is ADMITTED but the alleged residence of the latter in so far as it does not reflect consistency and veracity as stated in paragraph 1 of the complaint to wit: “Plaintiff Richard Chan, is of legal age, Filipino and a resident of Eroreco Brgy. Mandalagan, Bacolod City…. xxx” in contrary to the first paragraph of the Verification and Certification of Non-Forum Shopping which provides “I, Richard Chan, of legal age, Filipino and a resident of Brgy Villamonte Bacolod City… xxx” is hereby DENIED; 2. The allegation in paragraph 2 of the Complaint for Accion Publicciana is ADMITTED.

3. The allegations in paragraph 3, as regards the ownership of the Plaintiff on the subject parcel of land situated in Eroreco, Bacolod City is ADMITTED. 4. However, the Transfer Certificate of Title attached as Annex A in the complaint for Accion Publiciana is specifically DENIED for want of genuineness and authenticity. The alleged TCT attached as Annex A in the complaint for Accion Publiciana, is on its face tainted with irregularity; the Heading of the Title provides “REGISTRY of DEEDS for PROVINCE of NEGROS OCCIDENTAL” where, as alleged in paragraph 3 of the complaint for Accion Publiciana provides, “Plaintiff is the true and registered owner of a certain parcel of land situated in Eroreco, Bacolod City identified as Lot A and covered by Transfer Certificate of Title No. 12345 of the Registry of Deeds of Bacolod City. ….” Truth of the matter being, that when the property is located in Bacolod City, the Register of Deeds of Bacolod City has the sole authority to issue deeds covered within its territorial jurisdiction. 5. The allegations in paragraph 4 and 5 of the complaint for Accion Publiciana are ADMITTED; 6. The allegation in paragraph 6 of the complaint for Accion Publiciana averring that “Plaintiff had the property bought surveyed sometime around December 2006 and it was discovered that the defendant knowingly and unlawfully occupied the portion of the lot owned by the plaintiff, thus depriving the Plaintiff of his right of possession over the property” is DENIED. Around December 2006, the Plaintiff was not even the lawful owner of the subject property since as stated in paragraph 4 of the complaint, the deed of sale was only executed on December 18, 2008, therefore Plaintiff began his title to the property On December 18, 2008. He was not the owner and not a lawful possessor of the subject property on December 2006. He was not deprived his right of possession as there was NO right to speak of at that time. And even granting arguendo that the property was bought and surveyed on Decemeber 2006, the defendant Jack Pasaway would still be the lawful possessor of the subject property where the kitchen is located, the truth of the matter

being that a Lease Contract was entered into by Angel Lopez and the Defendant Jack Pasaway on January 5, 2006 covering 2x3 square meters of lot where the kitchen of Jack Pasaway was situated. The duration of the lease is for 50 years at one (1) peso per annum. The full amount of which was paid in cash by Jack Pasaway on the day the lease contract was executed. Furthermore, such lease contract was annotated at the back of the title, which served as a notice to the world that an encumbrance is attached to the subject property. Attached herewith as “ANNEX A” is the lease contract between Angel Lopez and Jack Pasaway and “ANNEX B” the Transfer Certificate Title which shows the annotations at the back of the Title. 7. Further, the averment that “Defendant’s kitchen area composed of light materials occupying approximately two-by-3 (2x3) square meters is situated within Plainitiff’s property. Such structure had been in existence at the time plaintiff acquired the property and defendant had full knowledge that said structure is on plaintiff’s property” is ADMITTED for in fact, the ownership of the Plaintiff over the property, the reckoning point of which is at the time of the execution of the deed of sale on December 18, 2008, is not disputed. 8. The allegations in paragraph 7 of the complaint for Accion Publiciana insofar as the averment which read “Plaintiff, through undersigned counsel demanded that defendant vacate and return the possession of said parcel of land to herein plaintiff” and “The last and final demand letter to vacate was received by the wife of the defendant on March 23, 2013 as it was personally served at their residence by John Javier, Law office Staff.” are ADMITTED. 9. However allegation that “Defendant has remained in illegal possession of said land and up to the present , still retains such possession” is DENIED. Defendant did not submit to the demands of the Plaintiff, precisely because the subject portion of land where the Defendant’s kitchen is situated is under a Lease Contract lawfully executed between Angel Lopez and the herein defendant. And by virtue of the Lease Contract, Jack Pasaway is therefore the lawful possessor of the subject property and not as what the Plaintiff purports it to be.

10. The allegation in paragraph 8 of the complaint for Accion Publiciana is ADMITTED. 11. The allegation in paragraph 9 of the complaint for Accion Publiciana is DENIED. There was no unjust refusal on the part of the Defendant, since in the eyes of the law, Jack Pasaway is the lawful possessor of the subject land where his kitchen is situated by virtue of the Lease Contract executed as between Angel Lopez and the defendant. The lease contract being attached as an encumbrance to the title over the property. 12. The foregoing are subject to the special and affirmative defenses hereunder presented.

SPECIAL AND AFFIRMATIVE DEFENSES

The Defendant replead and incorporate by way of reference the allegations from paragraphs 1-11 and further state as follows: 1. The Honorable Court, with all due respect, FAILED TO ACQUIRE JURISDICTION over the subject matter of the case; the complaint failed to allege jurisdictional facts required by law to wit: Under Batas Pambansa Bilang 129, the plenary action of accion publiciana must be brought before the regional trial courts. With the modifications introduced by Republic Act No. 769 in 1994, the jurisdiction of the regional trial courts was limited to real actions where the assessed value exceeds P20,000.00, and P50,000.00 where the action is filed in Metro Manila, thus: SEC. 19. Jurisdiction in civil cases. — Regional Trial Courts shall exercise exclusive original jurisdiction: xxxx (2) In all civil actions which involve the title to, or possession of, real property, or any interest therein, where the

assessed value of the property involved exceeds Twenty thousand pesos (P20,000.00) or, for civil actions in Metro Manila, where such value exceeds Fifty thousand pesos (P50,000.00) except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts.

Accordingly, the jurisdictional element is the assessed value of the property. Assessed value is understood to be “the worth or value of property established by taxing authorities on the basis of which the tax rate is applied. Commonly, however, it does not represent the true or market value of the property.1 Under the law as modified, jurisdiction is determined by the assessed value of the property. A reading of the complaint shows that respondents failed to state the assessed value of the property.

1. NARS, JES, Im constrained not to put the issue of docket fees, ky kahapos langgid katama eh rebut, lets not give them chance to make good of their case… Read bla Sun Insurance Office, Ltd. v. Asuncion wherein the Court decreed that where the initiatory pleading is not accompanied by the payment of the docket fee, the court may allow payment of the fee within a reasonable period of time, but in no case beyond the applicable prescriptive or reglementary period . OR WE CAN STILL PUT THE DEFENSE HERE IF YOU GUYS WANT, WHAT YA THINK? 2. The Plaintiff has NO CAUSE OF ACTION against the defendant; By virtue of the Lease Contract entered into between Angel Lopez and the defendant Jack Pasaway on January 5, 2006 covering 2x3 square meters of lot, were the kitchen of Jack Pasaway is situated, Jack Pasaway has therefore a paramount right of possession over the subject lot 1 G.R. No. 174346

Vda. De Barrera vs Heirs of Legaspi

in question insofar as the land where the kitchen of the defendant is situated . The Lease Contract was to last for 50 years from the date of its execution, at 1 peso ( Php. 1) per annum, the amount of which having been paid in full by Jack Pasaway on the same date that the Lease Contract was executed, attached herewith as “ANNEX A” and “ANNEX B” the Transfer Certificate Title which shows the annotations at the back of the Title. Rule 2 of the Rules of Court defines a cause of action as: Sec. 2. Cause of action, defined. – A cause of action is the act or omission by which a party violates a right of another.

The essential elements of a cause of action are (1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (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. The right of possession over the subject property has always remained with the herein Defendant, even before the Plaintiff acquired such property from Angel Lopez. The Lease Contract served as an encumbrance over the property regardless of its subsequent alienation to the Plaintiff. If there is anyone who has a cause of action, it would be the defendant Jack Pasaway, for the latter has all the right to be respected of his possession over the property. Stated otherwise, if there is anyone who is at fault here, it would be the defendant for not respecting such encumbrance attached in the property. Plaintiff was well aware of the encumbrance from the time of his previous demands to the defendant including during the Barangay Conciliation proceedings, yet he maliciously caused the filing of the instant case.

Even, granting for the sake of argument that he was not aware of the encumbrance, still under the law he is deemed to be constructively notified ( I don’t know if this is the correct term)of such encumbrance

annotated at the back of the title ( insert pertinent law or jurisprudence here guys). 3. The Title attached as “Annex A” in the complaint for Accion Publiciana shows signs which cast doubt on the genuiness of the Title. While we do not dispute the ownership of one Richard Chan in the subject property, the title submitted as Annex A of the complaint showed signs of irregularity and anomalous circumstances to wit: a. As above mentioned, the Transfer Certificate Title presented as “ANNEX A” shows on its heading that the Registry of Deeds of Negros Occidental issued said TCT. However, the subject property is located inside Bacolod City. Common practice dictates that if the property is located within Bacolod City, the Register of Deeds of Bacolod City is the one authorized to issue Titles within its territorial jurisdiction and not the Register of Deeds of the Province of Negros Occidental. b. The Plaintiff did not include in the TCT No.12345 the back portion which will show the list of liens and encumbrances attached to the property. One of which is the encumbrance of the lease contract executed by Angle Lopez and Jack Pasaway.

4. The Plaintiffs complaint for Accion Publiciana is not properly verified. Rule 7, Section 4 of the Revised Rules of Court as amended by A.M No. 00-2-10, provides:

Section 4. Verification. — Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit . A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his knowledge and belief. A pleading required to be verified which contains a verification based on "information and belief", or upon "knowledge, information and belief", or lacks a proper verification, shall be treated as an unsigned pleading.

A perusal of the VERIFICATION/ CERTIFICATION OF NONFORUM SHOPPING of the complaint for Accion Publiciana which the affiant-complainant Richard Chan signed will show that he is a resident of Brgy. Villamonte, Bacolod City, however, as above mentioned, a closer look at the complaint under paragraph 1, the complainant’s alleged residence is Eroroeco, Brgy. Mandalagan, Bacolod City. Had the affiant-complainant Richard Chan read the verification and attested to the allegations as true and correct to the best of his personal knowledge and/or based on authentic records, Richard Chan would have corrected or at the least noticed the inconsistency as between his Verification and the complaint. In addition, albeit the jurat states that RICHARD CHAN presented his Passport with ID No. EB-0123456, the validity or expiration date was omitted. It cannot therefore be determined if the same is a valid competent evidence of identity, hence, bogus. As stated above, a complaint is deemed verified when the affiant executes an affidavit that he has read the pleading and the allegations contained thereat. However, the mere fact that the affiant failed to even notice an inconsistency of his own residence in his complaint and verification, cannot be considered as proper verification. Lack of proper

verification shall be deemed as an unsigned pleading. Being an unsigned pleading, it is a mere scrap of paper. With the foregoing premises, the defendants respectfully submit that the Complaint should be dismissed for any or all of the grounds cited above.

COUNTERCLAIMS

In the rare event that the Honorable Court shall resolve to proceed with the trial of the case despite the above special and affirmative defenses, the Defendant submit the following compulsory counterclaims and for this purpose, hereby restate and repleads all the allegations in the preceding paragraphs by way of reference and incorporation: 1. Due to the plaintiff’s willful and patent disregard of the defendants’ rights, the defendants suffered inconvenience, embarrassment and humiliation thereby causing them mental anguish, serious anxiety, wounded feelings and social humiliation, resulting in moral damages for which the plaintiff should be held liable in the amount of One Hundred Fifty Thousand Pesos (P150,000.00), Philippine currency; 2. To deter others from following after the plaintiff’s wanton acts and evident bad faith, she should be held liable to pay the plaintiff exemplary damages in the amount of Fifty Thousand Pesos (P50,000.00), Philippine currency, by way of example or correction for the public good;

PRAYER

WHEREFORE, PREMISES CONSIDERED, it is most respectfully prayed that – 1. The Special and Affirmative Defenses shall be immediately set for preliminary hearing; 2. After the said preliminary hearing, to issue an Order dismissing the plaintiff’s complaint for Accion Publiciana, with prejudice; 3. In the remote event that the Honorable Court shall proceed with the trial, the defendant pray for a judgment denying the reliefs prayed for by the plaintiff for lack of merit; 4. On the compulsory counterclaims- to order the plaintiff to pay the defendants a. Moral damages in the amount of One Hundred Fifty Thousand Pesos (P150,000.00), Philippine currency; b. Exemplary damages in the amount of Fifty Thousand Pesos (P50,000.00), Philippine currency; c. Attorney's fees in the amount of Five Hundred Thousand Pesos (P500,000.00), Philippine currency; d. Appearance fee of Two Thousand Pesos (P2,000.00), Philippine currency, per court appearance; e. Other litigation expenses as may be proved during trial. Other reliefs just and equitable under the premises are likewise prayed for. Bacolod City, Philippines this --- day of --- 2013.

COUNSELS FOR THE DEFENDANT

Narciso Javelosa Jr. IBP No. 12345/1-6-2012/Bacolod City PTR No. 12345/1-6-2012/Bacolod City Roll No. 3456 MCLE Compliance No. III-12345/1-25-2011 Zenith Magandan IBP No. 12345/1-1-1111/Bacolod City PTR No. 12345/1-1-111/Bacolod City Roll No. 12345 MCLE Compliance No. III-12345-11 JESA BAYONETA IBP No. 12345/1-6-3444/Bacolod City PTR No. 123456/1-6-4455/Bacolod City Roll No. 532233 MCLE Compliance No. III-012334/1-25-2011

VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING

I, JACK PASAWAY, Filipino, of legal age, married and a resident of Bacolod City, Negros Occidental, Philippines, under oath, depose and say that: 1. I am the defendant in the above-entitled case; 2. I caused the Counterclaims;

preparation

of

the foregoing

Answer

with

3. I read all the allegations thereof and that the same are true and correct based on my own personal knowledge and authentic records; 4. I have not heretofore commenced any other action or proceeding involving the same issue in the Supreme Court, Court of Appeals, or any other tribunal or agency; 5. To the best of my knowledge, no such action or proceeding is pending in the Supreme Court, Court of Appeals, or any other tribunal or agency. 6. If I should hereafter learn that of any other similar action or proceeding has been filed or is pending before the Supreme Court, Court of Appeals, or any other tribunal or agency, I undertake to report that fact within five (5) days therefrom to the Honorable Court. SIGNED this ____________ at Bacolod City, Philippines.

Jack Pasaway

Republic of the Philippines) CITY OF BACOLOD )s.s. x - - - - - - - - - - - - - - - - - - - -x SUBSCRIBED AND SWORN to before me on _________________ at Bacolod City by Jack Pasaway who is personally known to me, hence, no need to present a competent evidence of identity.

Doc. No._____; Page No._____; Book No._____; Series of 2012.

Copy furnished to:

ATTY. NOVE C. ABANADO Counsel for the Plaintiff 1st Lacson St., Bacolod City