SAMPLE Motion To Expunge With Motion To Resolve

 

 

REPUBLIC OF THE PHILIPPINES NATIONAL CAPITAL JUDICIAL REGION REGIONAL TRIAL COURT Quezon City Branch XXX

IN THE MATTER OF INTESTATE ESTATE OF JUAN DELA CRUZ  

SP. PROC. NO. XX-XXXXX GLORIA DELA CRUZ,  Petitioner . x---------------------------------------x

MOTION TO EXPUNGE (Comment/Opposition of Cirila Dela Cruz)  AND MOTION TO RESOLVE PRIOR MOTION FOR INHIBITION INHIBITIO N AND RE-RAFFLE GLORIA DELA CRUZ   (hereafter respectfully states that:

“GLORIA”),

by

counsel,

1.  The Comment/Opposition filed by CIRILA DELA CRUZ   (hereafter “CIRILA”), dated 03 January 2018 and received by GLORIA   through counsel on 15 January 2018, should be expunged from the records. It is a lengthy recitation of allegations largely irrelevant to the Motion for Inhibition and Re-Raffle filed by GLORIA  on 18 December 2017, for which the Comment/Opposition was filed. More importantly, it is a malicious attempt to mislead the Honorable Court into adopting allegations of fact that are contrary not only to the facts on record, but to findings of fact and law made by no less than the Supreme Court. 2.  The core issue of the Motion for Inhibition and Re-Raffle is the inaction of the Honorable Court on the prior Motions filed by GLORIA for the purpose of advancing the intestate proceedings, as well as the numerous prior Oppositions filed against the purported Inventory and Accounting of the Estate submitted by CIRILA. The Movant that the of inaction of the CRUZ Honorable Court “is prejudicial to the true argues and legal heirs JUAN DELA (hereafter JUAN ”). Hence, the purported issues about the status of GLORIA as the legal spouse of 1

 

 

the decedent JUAN  are irrelevant to such Motion. On this score alone, the Comment/Opposition of CIRILA should be completely disregarded. 3.  However, CIRILA  goes one step further and makes factual allegations unsupported by law and evidence, perhaps out of ignorance, oversight, or simply a malicious attempt to mislead the Honorable Court. 4.  On the purported issue of GLORIA’s  status as the legal spouse of the decedent JUAN,  this is a matter of simply reviewing the records of this case. GLORIA  has proven through credible and competent testimonial and documentary evidence in SP Proc. Q-XXXXXXX (probate proceedings which was previously consolidated with the instant intestate proceedings) that she was the legal spouse of JUAN  at the time of his demise. This is a factual matter long settled. 5.  In fact, no less than the Supreme Court has settled this very question. In Social Security System et al. v. Gloria Dela Cruz 1, the Supreme Court upheld with finality the findings of the Social Security Commission and the Court of Appeals with respect to the status of GLORIA  as the legal spouse of JUAN, to wit: “As found by both the SSC and the CA, the divorce obtained by respondent against the deceased Antonio was not binding in this jurisdiction. Under Philippine law, only aliens may obtain divorces abroad, provided they are valid according to their national law. The divorce was obtained by respondent Gloria while she was still a Filipino citizen and thus covered by the policy against absolute divorces. This di d not sever her marriage ties with Juan . 2” ( Emphasis Emphasis  supplied ..)) 6.  In fact, not only did the Honorable Supreme Court rule on the validity and subsistence of GLORIA’s   marriage to JUAN  up to the time of his death, it reinstated the Social Security Commission decision, which found that JUAN’s  marriage to CIRILA was void .3  7.  Having accepted the decision of the Social Security Commission Commissi on and failing to appeal that portion declaring her marriage to JUAN  void, CIRILA  is thus barred by res judicata  judicata  (conclusiveness of judgment) from asserting diametrically opposed and contradictory facts before this Honorable Court. No amount of legal gymnastics and allegations of spurious facts will miraculously make GLORIA’s marriage 1

 (citation omitted, sample only) 2 Id  at  at some page 3 Id  at  at some other page

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to JUAN  void, let alone CIRILA’s  marriage to JUAN  valid and binding. CIRILA’s act of blatantly alleging facts contrary to the settled findings of fact by the Honorable Supreme Court may be construed as a direct and contemptuous affront to the dignity of this Honorable Court. 8.  We manifest further that CIRILA in effect prays that the Honorable Court terminate the intestate proceedings. In Paragraph 12 of the Comment/Opposition, CIRILA alleges: “That in the same vein, with due respect, there is no longer reason and legal feasibility or the Honorable Court to proceed with the intestate proceedings;” 9.  We vehemently oppose any such relief, especially considering that the pleading filed was not a motion specifically asking for such termination and that no Notice of Hearing was set for the purpose of hearing what appears to be a litigious motion in disguise, in blatant violation of Section 4, Rule 15 of the Rules of Court. 10.  Furthermore, we manifest that the initial portions of the intestate proceedings were held in abeyance while the probate proceeding (SP Proc. Q-XX-XXXXX) was litigated. As can be gleaned from the records, the only action taken in the intestate proceedings prior to being held in abeyance was the appointment of Atty. Jose Ma. R. Arcinas as Administrator of the Estate. Upon termination of the probate proceedings, however, no action has been taken by the Honorable Court, despite numerous Motions filed by Petitioner GLORIA, to move the intestate proceedings forward. The duly appointed Administrator has been unable to conduct a proper Inventory and Accounting of the Estate, due to CIRILA’s  refusal to surrender the same. There has been no judicial determination of the heirs of JUAN, as required by the Rules of Court prior to the distribution of the remainder of the Estate. Thus, in praying for a termination of the intestate proceedings, what CIRILA   asks of the Honorable Court is nothing short of the complete and utter violation of the Rules of Court. 11.  The Honorable Court should not countenance this brazen attempt at flouting the facts, the Rules of Court, and the law. Hence, CIRILA’s Comment/Opposition should be EXPUNGED from the records. 12.  CIRILA  is correct however in one respect: a person not an heir as defined under the Civil Code is considered a stranger to the estate. Since CIRILA’s  marriage to JUAN  is void , then by her own argument, CIRILA has no rights and interests in the Estate that would warrant her further participation in the instant intestate proceedings, she being a stranger to the Estate. 3

 

 

  13.  Thus we reiterate the prejudice against the Estate caused by the inaction of the Honorable Court in disposing of our motions to proceed with intestate proceedings, to reaffirm the prior appointment of Atty. Jose Ma. R. Arcinas as Administrator (and not merely a Joint Special Administrator, as misstated by CIRILA), and to deem as terminated the appointment of CIRILA  as special administrator under CIRILA’s  continued the now-terminated probate proceedings. possession and use of the property and fruits of the Estate as a stranger   to the same are prejudicial to JUAN’s true and legal heirs. 14.  Having reiterated thus, we move and pray that the Motion for Inhibition and Re-Raffle is resolved, and that HONORABLE PRESIDING JUDGE voluntarily  inhibit himself from adjudicating the instant intestate proceedings and that the same be re-raffled to another Branch of the Honorable Court. WHEREFORE, it is respectfully prayed that:

1.  The Comment/Opposition of CIRILA DELA CRUZ  be EXPUNGED   from the records for being irrelevant, maliciously inaccurate, and being a disguised Motion filed without a Notice of Hearing; 2.  The Motion for Inhibition and Re-Raffle be RESOLVED, and 3.  The HONORABLE PRESIDING JUDGE, Presiding Judge of this Honorable Court, voluntarily INHIBIT  himself from adjudicating the instant intestate proceedings and that the same be RERAFFLED to another Branch of the Honorable Court. Quezon City, 24 January 2018.

 ARCINAS AND ARCINAS Counsel for Petitioner Gloria dela Cruz   2K Edificio Enriquieta 422 N. S. Amoranto St. cor. D. Tuazon Ave., 1114 Quezon City

By: JUAN GREGORIO M. RAGRAGIO IBP No. 016794 (lifetime), 15 May 2017, Quezon City Chapter 4

 

 

PTR No. 5562841, 18 January 2018, Quezon City Roll No. 69686, 01 June 2017 MCLE Compliance: Pending, admitted to the Bar 2017

NOTICE OF HEARING 

THE BRANCH CLERK OF COURT REGIONAL TRIAL COURT Quezon City Branch XXX

 ATTY. OPPOSITION COUNSEL

Greetings: Please take notice that the undersigned counsel will submit the foregoing Motion for Inhibition and Re-Raffle for the consideration and resolution of the Honorable Court on 02 February 2018 at 8:30 in the morning.

JUAN GREGORIO M. RAGRAGIO

Copy furnished:  ATTY. OPPOSITION COUNSEL Counsel for Oppositor Cirila dela Cruz   Some Building Some Street City of Manila EXPLANATION

A copy of the Motion was sent to the foregoing Oppositor’s address through registered mail due to the temporary lack of messengers in our office to effect personal service.

JUAN GREGORIO M. RAGRAGIO 

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