Motion to Quash Writ of Execution

Republic of the Philippines NATIONAL CAPITAL JUDICIAL REGION REGIONAL TRIAL COURT Branch 24, Manila SPS. WILFREDO T. MARTINEZ and VIRGINIA A. MARTINEZ, Plaintiffs, -versus-

Civil Case No. 97-81921

ESPERANZA CONSIGNA, ET. AL., Defendants. x- - - - - - - - - - - - - - - - - - - - - - -x URGENT MOTION TO QUASH WRIT OF EXECUTION Defendants thru counsel unto the Honorable Court respectfully move the Honorable Court to quash the writ of execution dated April 18, 2001 issued in the above-entitled case and in support thereof state that: 1.

On July 2, 2001, defendants who are actual occupants of the

premises subject of this case with the exception of Esperanza Consigna and Ricardo Gonzales, personally received from Vicente J. Teves, Sheriff IV, a Notice to Vacate and surrender defendants’ respective portion of the subject property within 5 days from receipt of the said notice in accordance with the Order granting the issuance of a Writ of Execution issued by this Honorable Court. 2.

It appears that the said Notice to Vacate by virtue of the Writ of

Execution issued by this Honorable Court is null and void and without legal effect for “lack of due process” and would serve injustice and inequity to defendants herein considering that they were not properly served notice of the Motion for Writ of Execution and the subsequent Order granting the Writ of Execution in favor of plaintiffs. The Order dated April 18, 2001 of the Honorable Court speaks well of this situation when it provides as follows: “in the absence of any comment or opposition thereto by the defendants, it appearing that the Order of this Court directing them to comment could not be received by their counsel as the latter is no longer residing at the given address as per return of the Process Server of this Court dated March 13, 2001, the motion is hereby granted.” (Emphasis ours.)

2.1

The Process Server could have served the aforementioned

Order prior to the Order of April 18, 2001 as well as the Order granting the writ of execution personally to defendants who were individually named in the case at bar or could have availed of substituted service or other remedy under the Rules of Court only to satisfy due process for the validity of the questioned writ of execution. 3.

The

Writ

of

Execution

therefor,

was

prematurely

and

improvidently issued thereby making the Notice to Vacate equally void and none existent thus, it would only be proper for the Honorable Court to recall or quash the same, so that it will have the opportunity to rectify or put in proper order the proceedings of the case, in line with the ruling of the Supreme Court, in the case of Delos Santos vs. Yatco, Et. Al., L-13932 that: “A judge may quash a writ of execution on the ground that it was prematurely or improvidently issued.” For: “ ‘Due process of law’ contemplates notice and opportunity to be heard before judgment is rendered affecting one’s person or property.” (Lopez vs. Director of Lands, 47 Phil. 23; Sicat vs. Reyes, 100 Phil. 505.) 4.

With the same persuasion is the fact that defendants were

already abandoned by their counsel of record who from time to time informs them of any development in the above-entitled case which makes “material change in the situation of the parties after rendition of judgment”. 4.1

In the case of Amor vs. Jose, 77 Phil. 703, the Supreme

Court held that the cognizant court may quash the writ of execution where there had been a change in the situation of the parties which makes the issuance of a writ of execution inequitable. 5.

Obviously enough, the aforementioned circumstances would

render adequate, subservient to the principle of justice and equity, not only the recall or quashal of the writ of execution already issued but also its stay in line with the ruling laid down in the case of Laurel vs. Abalos, 30 SCRA 281 reiterated in the case of Hualam Construction Dev’t. Corp. vs. CA, 214 SCRA

612, which provides for the exceptions to the rule on execution of judgment even in cases of summary nature like ejectment which is applicable and squarely fits in the case at bar. Accordingly: “Where supervening events occurring subsequent to the judgment bring about a material change in the situation of the parties which makes the execution inequitable, or where there is no compelling urgency for the execution because it is not justified by the prevailing circumstances, the court may stay immediate execution of the judgment.” 6.

Equally encouraging is the precept laid down in the case of Dy

vs. Court of Appeals, 195 SCRA 585, which was announced this wise: “Nothing is more settled than the rule that in every litigation the parties thereto are entitled to due process and if there is a denial thereof then the validity of the proceedings is open to question. This principle should be observed even in cases where the rules on summary procedure are applied.” (Emphasis ours.) 7.

DY further emphasized that any judgment or order of the trial

court which disposes of the case, even execution pending appeal, “cannot be authorized without previous notice to the losing party of such judgment or order.” The rationale for the observance of the said process in the language of DY is to: “enable the losing party to take any appropriate steps to protect his interest when warranted. The losing party is entitled to such notice as an essential requirement of due process; otherwise, the entire proceedings leading to the execution of the judgment may be nullified and set aside.” (Emphasis ours.) 8.

Further, the execution of the Notice to Vacate would render the

executing Sheriff thereof liable for the consequences and damages which may come considering that the Writ of Execution within which it derives its authority is legally impermissible. WHEREFORE, it is most respectfully prayed of the Honorable Court that:

a.) the Writ of Execution dated April 28, 2001 be quashed and set aside; b.) immediately upon filing of this motion an Order be issued directing the executing Sheriff not to enforce the Notice to Vacate; and c.) an Order be issued directing Defendants herein to file their Comment or Opposition to plaintiffs’ Motion for Execution dated March 2, 2001.

September 21, 2006 ATTY. JOSEPH P. LOPEZ CITY PROSECUTOR, MLA. MANILA CITY HALL Dear Honorable City Prosecutor Joseph P. Lopez: May I respectfully request from your Office a written authority to represent the undersigned's client as his private prosecutor under the direct supervision and control of the Honorable Public Prosecutor. The case is PP. Vs. Evelyn Echas Agito et al., docketed as Crim. Case No. 04-231987, Br. 3, RTC- Manila. Thank you very much!

Sincererly yours, ATTY. CARLOS M. CARLOS Unit 2A, C4, Greenhills Garden Sq.