REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT Third Judicial Region Branch 16, Malolos City, Bulacan

PENTECOSTAL MISSIONARY CHURCH OF CHRIST (4th WATCH) INC., Plaintiff,

Civil Case No. 749-M-02 For: Specific Performance and Consignation with Damages

-versusERNESTO L. PINEDA and VIRGINIA Y. PINEDA, both deceased, Substituted by their Heirs namely: Amador Y. Pineda, Ferdinand Y. Pineda, Catherine Y. Pineda, Marilon Y. Pineda, And Anna Marie Y. Pineda Defendants. x---------------------------------------------x MOTION TO QUASH WRIT OF EXECUTION (dated 10 April 2013) COMES NOW, the plaintiff Pentecostal Missionary Church of Christ (4th Watch) Inc., by the undersigned counsel, before the honorable court, respectfully moves for the quashal of the Writ of Execution dated 10 June 2013 issued by the Branch Clerk of Court Atty. Melanie M. Maddela, and directed to the Deputy Sherriff on the following grounds: PREFATORY STATEMENT The expeditious and efficient execution of court orders and writs should not be at the expense of due process and fair play.1 An obvious violation and disregard of the right to due process was committed against the plaintiff in this case. The mandatory requirements of Rules 15 and 39 of the Rules of Court were not complied with. Section 1, Article III, of the Constitution2 declares that no person shall be deprived of property without due process of law.

1 2

Sps. Stilgrove vs. Eriberto R. Sabas, A.M.No. P-06-2257, 29 November 2006 Const. (1987) Section 1, Article III, No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

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.3

1. The dispositive portion of the DECISION of the honorable court, dated 17 February 2009, on the above-entitled case is hereby reproduced as follows:
WHEREFORE, premises considered, the Court hereby orders, as follows: 1. The instant complaint for specific performance and consignation with damages is hereby DISMISSED, for lack of merit. 2. All payments of the purchase price and all and any improvements introduced/built by the plaintiff on subject property are deemed forfeited in favor of defendants. 3. The plaintiff and all persons claiming rights therein are hereby ordered: (a) To immediately vacate subject premises covered by TCT No. T-81600 of the Registry of Deeds of Guiguinto, Bulacan. (b) To pay the value of plainitffs occupancy of subject premises from October 27, 2001, until it finally vacates the premises, at the rate of Php 68, 150.00 per month, computed at Php 50.00, per square meter, with legal interest; and (c) To pay defendants the following: Php 1,000,000.00, by way of moral damages; Php 500,000.00, for exemplary damages; Php 200,000.00 as actual damages; Php 120,000.00 and Php 5,000.00 representing attorneys acceptance fee and per appearance fees, respectively. SO ORDERED

2. The Court of Appeals in a DECISION4, dated 31 October 2011, resolved to affirm in toto the decision of the honorable court dated 17 February 2009, the dispositive portion of the Court of Appeals decision reads as follows:
WHEREFORE, PREMISES CONSIDRED, the instant Appeal is hereby DENIED. The court a quos Decision dated 17 February2009 is hereby AFFIRMED IN TOTO.

3. The Supreme Court Second Division, on 18 June 2012, issued a RESOLUTION5 in G.R. No. 200361 (the above-entitled case), declaring the case closed and terminated. A part of the resolution reads as follows:
3. INFORM the Court of Appeals and the parties that no petition for review has been filed in this case and that the judgement sought to be reviewed has now become final and executor, and DECLARE this case CLOSED and TERMINATED.

3 4

Andres Dy vs. The Honorable Court of Appeals, G.R. No. 93756, 22 March 1991. Copy attached as ANNEX A 5 Copy attached as ANNEX B

4. That on 13 August 2012 the corresponding Entry of Judgment was issued by Corazon D. Delos Reyes6 stating that the Resolution dated 18 June 2012 rendered in G.R. No. 200361 (the above-entitled case), has become final and executory. 5. That the above-named heirs of the deceased defendants, on 25 September 2012, filed a Motion for Execution with the honorable court praying for the issuance of a Writ of Execution of the Decision of the honorable court dated 17 February 2009, without due notice to the plaintiff. 6. That the honorable court, on 8 April 2013, issued an Order granting the Motion for Execution without the participation of the plaintiff. 7. That the Branch Clerk of Court7 issued the herein assailed Writ of Execution on 10 April 2013 directing the same to the Deputy Sheriff for the execution of the Decision of the honorable court dated 17 February 2009. A part of the Writ of Execution reads as follows:
NOW, THEREFORE, by this Writ, you are hereby commanded to execute and make effective in accordance with law, the above-quoted decretal portion of the Decision dated 17 February 2009, for the full satisfaction thereof, together with your lawful fees for service of this execution, which deceased defendants Ernesto L. Pineda and Virginia Y. Pineda, recovered in this case against plaintiff Pentecostal Missionary Church of Christ (4th Watch) Inc. and to tender the same to the above-named heirs of the said defendants and return this writ, with the lawful fess, to this Court, within thirty (30) days from the date of receipt hereof with your proceedings indorsed thereon. If the plaintiff cannot pay all or part of the money judgement in cash, certified bank check or other mode of payment acceptable to the defendants heirs, you shall levy upon the properties of the plaintiff of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution, giving the latter the option to immediately choose which property may be levied upon, sufficient to satisfy the money judgment. If the plaintiff does not exercise the option, you shall first levy on the personal properties, if any, and then on the real properties, if the personal properties are insufficient to answer for the money judgment and lawful fees, and make a report to this Court every thirty (30) days on the proceedings taken until the judgment is satisfied in its full or its effectivity expires.

8. That on 07 May 2013 plaintiff received a copy of the herein assailed Writ of Execution. 9. Since the grounds herein interposed are interrelated, plaintiff respectfully begs leave to discuss them jointly. THAT THE WRIT OF EXECUTION DATED 10 APRIL 2013 HAS BEEN IMPROVIDENTLY ISSUED AND IS DEFECTIVE IN SUBSTANCE 10. The Supreme Court, in the early case of Wolfson vs Del Rosario8 declared that:
xxx.It is very true that the court retains a certain amount of control over a writ of execution even after it leaves its hands, but such control is limited and regulated by fairly
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Corazon D. Delos Reyes, Supreme Court Assistant Chief, Judicial Records Office Atty. Melanie M. Maddela, Branch Clerk of Court, Regional Trial Court, Branch 16, Malolos City, Bulacan 8 J.A. Wolfson vs. Simplicio Del Rosario, G.R. No. L-22401, 01 August 1924.

definite rules of law and is not unrestricted. A writ of execution may thus be quashed when it appears that it has been improvidently issued, or that it is defective in substance, or is issued against the wrong party, or that the judgment debt has been paid, or when the writ has been recalled by reason of any defense which could have been made at the time of the trial of the case, nor can the recall be made so as to practically change the terms of a judgment which has become final. (Emphasis supplied)

11. A cursory reading of the Motion for Execution9 filed by the defendants will reveal that the said Motion does not contain the mandatory requirement of proof of service to the adverse party. 12. Plain is the rule that every motion must contain the mandatory requirements of notice and hearing and that there must be proof of service thereof. A motion which does not comply with the rule is pro forma, a mere scrap of paper which should not merit the honorable courts consideration. The Supreme Court, in the case of Meris vs. Ofilada10, rationalized the rule, The objective of the rule is to avoid a capricious change of mind in order to provide due process to both parties and ensure impartiality in the trial. (Emphasis supplied) 13. The Rules of Court require that every motion must be set for hearing by the movant, except those motions which the court may act upon without prejudicing the rights of the adverse party. The notice of hearing must be addressed to all parties and must specify the time and date of the hearing, with proof of service. Sections 4, 5 and 6 of Rule 15 of the 1997 Rules on Civil Procedure provide:
SECTION 4. Hearing of motion.- Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant. Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice. SEC. 5. Notice of hearing.- The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion. SEC. 6. Proof of service necessary.- No written motion set for hearing shall be acted upon by the court without proof of service thereof. (Emphasis supplied)

14. The defendants undoubtedly failed to comply with the rule on notice and hearing when they filed their motion for the issuance of a writ of execution with the honorable court. The Motion for Execution filed by the defendants did not contain the required proof of service to the adverse party. The requirement of a proof of service is based on the rudiments of justice and fair play. (Emphasis supplied) 15. Without the required proof of service to the adverse party, a motion is nothing but an empty formality deserving no judicial cognizance .11 The rule
9

Motion for Execution, dated 25 Septmeber 2012. Cesar B. Meris vs. Judge Carlos C. Ofilada, A.M. No. RTJ-97-1390, 5 August 1998 11 Lutgarda Cruz v. Court of Appeals, G.R. No. 123340, 29 August 2002
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mandates that the same shall not be acted upon by the court. Proof of service is mandatory. (Emphasis supplied) 16. Furthermore, the herein assailed Writ of Execution dated 10 April 2013, does not substantially comply with the mandatory directives of Section 8, Rule 39 of the Rules of Court, to wit:
Section 8. Issuance, form and contents of a writ of execution. The writ of execution shall: (1) issue in the name of the Republic of the Philippines from the court which granted the motion; (2) state the name of the court, the case number and title, the dispositive part of the subject judgment or order; and (3) require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms, in the manner hereinafter provided: xxx xxx xxx

(d) If it be for the delivery of the possession of real or personal property, to deliver the possession of the same, describing it, to the party entitled thereto, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the person against whom it was rendered, and if sufficient personal property cannot be found, then out of the real property; and (e) In all cases, the writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the judgment. For this purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movant. (Emphasis supplied)

17. Section 8 of the above-mentioned rule is clear; it mandates that the writ of execution must specifically state the exact amount to be collected by the sheriff. For clarity, the pertinent portion of the herein assailed Writ of Execution is hereby reproduced as follows:
NOW, THEREFORE, by this Writ, you are hereby commanded to execute and make effective in accordance with law, the above-quoted decretal portion of the Decision dated 17 February 2009, for the full satisfaction thereof, together with your lawful fees for service of this execution, which deceased defendants Ernesto L. Pineda and Virginia Y. Pineda, recovered in this case against plaintiff Pentecostal Missionary Church of Christ (4th Watch) Inc. and to tender the same to the above-named heirs of the said defendants and return this writ, with the lawful fess, to this Court, within thirty (30) days from the date of receipt hereof with your proceedings indorsed thereon. If the plaintiff cannot pay all or part of the money judgement in cash, certified bank check or other mode of payment acceptable to the defendants heirs, you shall levy upon the properties of the plaintiff of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution, giving the latter the option to immediately choose which property may be levied upon, sufficient to satisfy the money judgment. If the plaintiff does not exercise the option, you shall first levy on the personal properties, if any, and then on the real properties, if the personal properties are insufficient to answer for the money judgment and lawful fees, and make a report to this Court every thirty (30) days on the proceedings taken until the judgment is satisfied in its full or its effectivity expires. (Emphasis supplied)

The exact amount to be collected by the sheriff is nowhere to be found in the assailed Writ of Execution. It merely commands the sheriff to execute and make effective in accordance with the law, the above-quoted decretal portion of the Decision dated February 17, 2009 xxx. (Emphasis supplied) 18. The violation of the mandatory requirement of the rule in effect delegates to the executing sheriff a wide latitude of discretion in performing his official
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duty, the execution of the DECISION of the honorable court on the above-entitled case. (Emphasis supplied) 19. It has been held in a long line of cases decided by the Supreme Court that the sheriffs duty to execute a judgment is ministerial . A purely ministerial act is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to the exercise of his own judgment upon the propriety of the act done. Otherwise stated, a sheriff need not look outside the plain meaning of the writ. (Emphasis supplied) 20. Section 912 of the same rule is clear, to wit:
Section 9. Execution of judgments for money, how enforced. (a) Immediate payment on demand. The officer shall enforce an execution of a judgment for money by demanding from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee, or any other form of payment acceptable to the latter, the amount of the judgment debt under proper receipt directly to the judgment obligee or his authorized representative if present at the time of payment. The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ. If the judgment obligee or his authorized representative is not present to receive payment, the judgment obligor shall deliver the aforesaid payment to the executing sheriff. The latter shall turn over all the amounts coming into his possession within the same day to the clerk of court of the court that issued the writ, or if the same is not practicable, deposit said amounts to a fiduciary account in the nearest government depository bank of the Regional Trial Court of the locality. The clerk of said court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ whose clerk of court shall then deliver said payment to the judgment obligee in satisfaction of the judgment. The excess, if any, shall be delivered to the judgment obligor while the lawful fees shall be retained by the clerk of court for disposition as provided by law. In no case shall the executing sheriff demand that any payment by check be made payable to him. xxx xxx xxx (emphasis supplied)

21. Clearly, the provisions above-mentioned leave no room for any exercise of discretion on the part of the sheriff on how to perform his or her duties in implementing the writ. A sheriff must implement the writ of execution to the letter. A sheriffs compliance with the Rules is not merely directory but mandatory. 22. Thus, when a writ of execution is issued in contravention of the mandatory requirements of Sec. 8 and Sec. 9 of the Rules of Court, as in the instant case, it opens the writ to the unbridled interpretation and implementation by the sheriff. An exercise of wide latitude of discretion on the part of the sheriff may lead to abuse and injustice, which the Rules of Court zealously safeguards

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Section 9 (a), Rule 39, Rules of Court

against. The changes made to Section 8 of Rule 39, by amending paragraph (e), emphasize this point. (Emphasis supplied) 23. The rules frown on and seek to proscribe arbitrariness and oppressive conduct in the execution of an otherwise legitimate act. 24. A contravention of the mandatory directives of the rules would clearly result to a violation of the plaintiffs constitutional right to due process; as such the plaintiff may be deprived of its property without the proper procedure sanctioned by the rules. Cleary, the Writ of Execution is defective. Hence, null and void and is unenforceable. (Emphasis supplied)

PRAYER WHEREFORE, premises considered, plaintiff most respectfully prays of the honorable court that (i) The Writ of Execution dated 10 April 2013 be declared NULL and VOID; (ii) That the same be SET ASIDE; and (iii) That the Deputy Sheriff be enjoined from further implementing the same. Other just and equitable reliefs are likewise prayed for. Las Pinas City for Malolos City, Bulacan, Philippines, 28 June 2013.

ATTY. LEO MIGUEL A. ESCALONA

Counsel for the Plaintiff 119 Rosalia Street, Saint Michael Village Talon Dos, Las Pinas City IBP No. 934730; 08 April 2013 PTR. No. 1843209; 06 May 2013 Roll No. 61822; Admitted to the Bar April 2013

NOTICE OF HEARING The Branch Clerk of Court RTC Branch 16 Malolos City, Bulacan Greetings! Kindly submit the foregoing Motion for approval and consideration of the honorable court on 05 July 2013 at 8:30 am. Thank you Leo Miguel A. Escalona

Atty. Charita R. Agdon

Counsel for Defendants

Greetings! Please take notice that the undersigned will submit the foregoing Motion for approval and consideration of the honorable court on 05 July 2013 at 8:30 am. Thank you Leo Miguel A. Escalona Atty. Pascual T. Lacas
Counsel for Defendants

Greetings! Please take notice that the undersigned will submit the foregoing Motion for approval and consideration of the honorable court on 05 July 2013 at 8:30 am. Thank you Leo Miguel A. Escalona

EXPLANATION Counsel furnished a copy of the motion to the other party by registered mail due to time constraints and lack of office staff to personally deliver it.

Leo Miguel A. Escalona

Copy furnished: Atty. Charita R. Agdon

Counsel for Defendants

27 June 2013 Registry Reciept No. 9065

Suite 104 Helfenstein Holding Corp. (HHC) Building Victoria St. cor. Basco St. Intramuros Manila Atty. Pascual T. Lacas
Counsel for Defendants

27 June 2013 Registry Reciept No. 9066

#7 Love St., Jordanville Homes Baesa Road, Baesa, Quezon City