Sample Pre-trial Brief

Republic of the Philippines MUNICIPAL TRIAL COURT OF CEBU CITY Branch 1

Civil Case no. 50 For: Collection of Sum

NOEL Q. BACALLA, Jr. Plaintiff,

-

versus -

ROBERT E. IRAN Defendant, PRE TRIAL BRIEF

DEFENDANT, by counsel, to the Honorable Court, respectfully submits its pre trial brief as follows: STATEMENT OF THE CASE

 Art. 1231 of the Civil Civil Code Code provides provides that; “Obligations are extinguished: (1) By payment or performance: (2) By the loss of the thing due: (3) By the condonation or remission of the debt; (4) By the confusion or merger of the rights of creditor and debtor; (5) By compensation; (6) By novation. Other causes of extinguishment of obligations, such as annulment, rescission, fulfillment of a resolutory condition, and prescription, are governed elsewhere in this Code. (1156a)” 

On January 6, 2005, defendant came to the residence of the plaintiff  requesting that he be allowed to borrow Pesos: Fifty Thousand (P 50,000.00) for  the purpose of using the money to pay for the hospital expenses expenses incurred for the medication of his wife.

Touched with his compassionate heart, plaintiff lent the aforesaid amount on the condition that he be repayed on or before May 31, 2005 as provided for in the promissory note executed by the plaintiff.

On June 8, 2005, defendant received the demand letter from the plaintiff. Upon reading the demand letter, in truth and in fact, defendant scampered to look for funds in order the settle the amount owed to the plaintiff.

On June 10, 2005, defendant went to the residence of the plaintiff in order  to effect payment. However, the plaintiff was not physically around at that time. Defendant decided to tender the amount of Pesos: Fifty Thousand (P 50,000.00) demanded from him to the plaintiff’s daughter, Ma. Cristina S. Bacalla, of legal age, and living with plaintiff within the same abode. Receipt of the amount is evidenced by a written acknowledgment by the plaintiff’s daughter.

However, plaintiff claims to have not received the payment from the defendant. Further, plaintiff is insisting that there was a stipulation of interest of  5% per month which was not written on the face of the promissory note executed by the defendant. Defendant claims otherwise as stipulated in the foregoing, hence this instant case.

POSSIBILITY OF AMICABLE SETTLEMENT

Defendant owes much gratitude to the plaintiff and his family. Over the years, plaintiff has been a good Samaritan in the community. It is of paramount interest of the defendant to amicably settle the case. Defendant is very much willing to pay for a legal interest rate of 6% per annum and the attorney’s fees of  Pesos: Five thousand (P 5,000.00) as prayed for by the plaintiff in his complaint. PROPOSED STIPULATION OF FACTS AND/OR ADMISSION OF FACTS

1)

That plaintiff is not into the business of lending money for interest or for  the purpose of deriving profits therefrom.

2)

That Ma. Cristina S. Bacalla, of legal age, single, is the daughter of the plaintiff living with him within the same abode.

3)

That Ma. Cristina S. Bacalla does not suffer from any impairment of  her mental faculties that impairs her legal capacity to enter into a contract or whatever of the same nature.

4)

That the signature appearing on the Acknowledgment Receipt marked as Exhibit B hereof is that of Ma. Cristina S. Bacalla.

5)

That on June 10, 2005, on or about 3PM to 4PM, plaintiff was not around or within the premises of his residence.

ISSUES TO BE TRIED OR RESOLVED

1)

Whether or not there was a stipulation of interest charges at the time the plaintiff granted the plead of the defendant of lending money;

2)

Whether or not interest charges may be legally imposed even in the absence of such provision on the face of the promissory note executed by the defendant;

3)

Whether or not the payment made to the daughter of the plaintiff who lives with him in the same abode is a valid tender of payment as if it was made directly to the plaintiff therefore extinguishing the obligation.

EXHIBITS MARKED AS DOCUMENTS TO BE PRESENTED

The following documents are to be presented:

Exhibit A – A machine copy of the promissory note executed by defendant

Exhibit B – A machine copy of the acknowledgement receipt by Ma. Cristina S.

Bacalla

Exhibit C – A machine copy of the demand letter by the plaintiff to the defendant

Exhibit D – A sample specimen signature of the plaintiff 

Exhibit E – A sample specimen signature of the Ma. Cristina S. Bacalla

Exhibit F – A sample specimen signature of the defendant

The defendant reserves his right to present other documents not herein listed a may be deemed necessary.

WITNESSES TO BE PRESENTED

1)

The defendant himself – to testify that he has effected the payment;

2)

The wife of the defendant, Flair S. Iran – to testify the fact of the payment;

3)

The children of the defendant – to testify the fact of payment;

4)

Atty. Marlon R. Etcuban – to testify that the funds used by defendant to pay his obligation was in fact from him;

5)

Ma. Cristina S. Bacalla – to testify that she received the payment of the defendant;

6)

Defendant reserves the right to present other witnesses not herein enumerated as deemed necessary.

The testimonies of the witnesses would not consume more than 15 minutes on direct examination, and another 15 minutes on cross examination.

DATES OF HEARING

The defendant would depend upon the dates agreed upon during the pre trial.

RESPECTFULLY SUBMITTED. Cebu City. September 29, 2005 NOEL O. BACALLA  Attorney for the Defendant 6F Cebu Holdings Center, CBP Cebu City /Tel no. 2315301 Roll no. 00079 IBP no. 00080 Jan. 1, 2005 PTR no. 0000012 Jan. 1, 2005 Cebu City

Copy furnished by personal service: Atty. Richard Z. Tenchavez Counsel for the plaintiff  Unit 2 Carbon Market Ermita, Cebu City Received by:  ________________

Date: ______________