REPUBLIC OF THE PHILIPPINES NATIONAL CAPITAL JUDICIAL REGION REGIONAL TRIAL COURT LAS PIAS CITY, BRANCH NO.

32

AVELINA R. CORTES, -Plaintiff -versusCIVIL CASE NO. 1001 For EJECTMENT (Forcible Entry)

SPS. OLYMPIO ALMAZAR AND CLEMENTINA O. ALMAZAR -Defendant x

MOTION TO DISMISS

DEFENDANTS, through counsel and to this Honourable Court, respectfully move for the dismissal of the complaint in the above entitled case, on the following:

G R O U N D

1.

UNDER PARAGRAPH 3, SECTION 33 OF BATAS PAMBANSA BLG. 129, AS AMENDED BY REPUBLIC ACT NO. 7691, RELATION TO 1991 REVISED RULE ON SUMMARY PROCEDURE, THIS HONOURABLE COURT HAS NO JURISDICTION OVER THE INSTANT ACTION;

ALTERNATIVE GROUNDS 2. PURSUANT TO SECTION 2 RULE 3 OF RULES OF COURT, THE INSTANT ACTION FILED AND SIGNED BY THE PLAINTIFFS ONLY CHILD, WHO S A MINOR, LACKS LEGAL CAPACITY TO SUE.

3.

PURSUANT TO SECTIONS 3, 4, AND 5 OF RULE 7 OF THE RULES OF COURT, THE PLAINTIFF HAS NO CAUSE OF ACTION TO ASSERT CLAIMS IN THE INSTANT ACTION.

DISCUSSION OF GROUNDS

Paragraph 3, Section 33 of Batas Pambansa Blg. 129, as amended by Republic Act No. 7691, provides as follows:

SEC.

33.-Jurisdiction

of

METROPOLITAN

TRIAL

COURTS, MUNICIPAL TRIAL COURTS and MUNICIPAL CIRCUIT TRIAL COURTS in Civil Cases.- Metropolitan Trial
Courts, Municipal Courts and Municipal Circuit Trial Court shall exercise: xxxxxxxxxxxxxxxxxxxx; (3) Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorneys fees,

litigation expenses and costs: Provided, That in cases of land not declared for taxation purposes, the value of such property shall be declared by the assessed value of the adjacent lots.

Further, 1991 Revised Rule of Summary Procedure provides as follows: SECTION 1. Scope- This rule shall govern the summary procedure in the Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Circuit Trial Courts in the following cases falling within their jurisdiction: A. Civil Cases: (1) All cases of FORCIBLE ENTRY and unlawful detainer, recovered. irrespective Where of amount fees of are damages or unpaid rentals sought to be attorneys awarded, the same shall not exceed twenty thousand pesos (P20,000.00). xxxxxx. Since the aforementioned quoted rule of Section 33 of Batas Pambansa Blg. 129, as amended by Republic Act 7691, has provided for the EXCLUSIVE ORIGINAL JURISDICTION to the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in ALL CIVIL ACTIONS INVOLVING TITLE TO POSSESSION OF REAL PROPERTY OR ANY INTEREST THEREIN, and the abovementioned quoted rule of Section 1 of the 1991 Revised Rule of Summary Procedure, providing futher for the jurisdiction on all civil cases pertaining to FORCIBLE ENTRY to Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Courts, THIS HONOURABLE COURT HAS NO JURISDICTION OVER THE SUBJECT MATTER- FORCIBLE ENTRY OF THE INSTANT CASE.

As alleged in the instant case on paragraph 6 and 7 of the complaint, the Plaintiff stating her cause of action where her right of possession of the real property concerned was done with stealth by taking advantage of the Plaintiffs prolonged absence whereby the Defendants then took full control and possession of the said property by constructing a house therein, the action being a FORCIBLE ENTRY case should be filed with the appropriate Municipal Trial Court and not with this Honourable Court. DISCUSSION OF ALTERNATIVE GROUNDS

The instant case covered by the 1991 Revised Rule on Summary Procedure, where the prohibited pleadings and motions, as set forth by Section 19, provides for Motion to Dismiss the complaint or to quash the complaint, or information except on the ground of lack jurisdiction over the subject matter xxx. However, granting in arguendo that the Honourable Court has jurisdiction over the subject matter, Section 3 of Rule 3 and Sections 3, 4 and 5 of Rule 7 of the Rules of Court sets forth other grounds for the motion to dismiss. Section 2 of Rule 3 of the Rules of Court provides as follows: SECTION 2. Parties in interest. A real party in interest is the party who stands BENEFITED OR INJURED by the judgement in the suit , or the party entitled to the avails of the suit. Unless otherwise authorized by law or theses Rules, every action must be prosecuted or defended in the name of the real party in interest. Sections 3, 4, and 5 of Rule 7 of the Rules of Court provides as follows: SECTION 3. Signature and address.- Every pleading must be signed by the PARTY xxx. SECTION 4. Verification. xxx.

A pleading required is verified or accompanied by an affidavit that the AFFIANT HAS READ THE PLEADING AND THAT ALLEGATIONS THEREIN ARE TRUE AND CORRECT OF HIS PERSONAL KNOWLEDGE OR BASED ON AUTHENTIC RECORDS. SECTION 5.

Certification

against

forum

shopping.- The PLAINTIFF OR PRINCIPAL PARTY SHALL

CERTIFY UNDER OATH in the complaint or other initiatory pleading asserting claim for relief or in a sworn certification annexed thereto and simultaneously filed therewith xxx.

The instant case as evidenced by the VERIFICATION AND CERTIFICATION, was not filed and signed by the real party in interest- the Plaintiff but by her daughter without providing any explanation of the said action. The real party in interest without signing and certifying the complaint as set forth in the Rules of Court gives on cause of action to the DAUGHTER OF THE PLAINTIFF to prosecute the case in the PLAINTIFFS behalf, therefore instant case filed by the DAUGHTER OF THE PLAINTIFF lacks cause of action to assert claims in the instant case. Moreover, as provided in the Lunsod vs Oriega ( 46, Phil. 664) case WHEREFORE, it is respectfully prayed that the instant action be dismissed for lack of jurisdiction of this Honourable Court.

Pasay City, May 4, 2013.

ARMIE LYN G. SIMEON Counsel for the Defendant 4th Floor 12L Stoneblock One Metropolitan Place, Edang Pasay PTR No. 000111222/11-1-09/P.C Roll of Attorneys No. 123456 IBP No. 7891011/9-10-08/Makati

NOTICE OF HEARING

BRANCH CLERK OF COURT RTC- Las Pinas City, Branch 32 ATTY. JUAN DELA CRUZ Counsel for the Plaintiff GREETINGS: Please take notice that the foregoing motion will be submitted for the consideration of this Honourable Court on Friday, May 10, 2013 at 9:00 oclock in the morning.

ARMIE LYN G. SIMEON

Copy furnished:

ATTY. JUAN DELA CRUZ Counsel for Plaintiffs 1 John Street, Las Pinas City

EXPLANATION Copies of the foregoing motion were filed with this Honourable Court and served upon the Plaintiffs counsel by LBC and registered mail due to distance.

ARMIE LYN G. SIMEON