Republic of the Philippines

REGIONAL TRIAL COURT

8th Judicial Region
BRANCH 34
Tacloban City

MERCEDES L. MATE,
Plaintiff, CIVIL CASE No. 2006-11-132
for:
-v e r s u s- PARTITION with Nullification
of Extrajudicial Settlement of
MELVIN Q. MATE, THOMAS Q. MATE, Estate; Injunction with Prayer
JOSEPH FERNANDO Q. MATE, for Writ of Preliminary
MARIBEL GIRON and PERLITA TUPAZ, Injunction and/or Temporary
Defendants. Restraining Order & Damages

x- - - - - - - - - - - - - - - - - - - - - - - - - - x

ANSWER

DEFENDANT THOMAS Q. MATE, through counsel, unto this Honorable

Court respectfully avers: THAT---

ADMISSION

1. Defendant admits some of the material allegations of paragraph 2 of the

complaint such as his US citizenship, but his actual residence is not at 120 P.
Zamora St., Tacloban City, but in 302 Manini Place, Kihei, Hawaii, 96753, U.S.A.
It is just timely that he got a copy of the complaint in this recent visit to the
Philippines; otherwise, there could be no proper service of summons to him. His
other siblings, who are residing in the United States, ought to be served with
summons pursuant to Section 15, Rule 14 of the Rules of Court.

2. Defendant admits paragraphs 3, 4, 5, 6 and 7 of the complaint.

NO PERSONAL KNOWLEDGE

3. For lack of knowledge or information to form a belief as to the plaintiff’s’

purported claim over the paraphernal properties of defendant’s deceased mother,
Mary Quaile, which are subject of their extrajudicial settlement of estate, the
defendant denies paragraph 8 of the complaint.

4. For lack of knowledge and information to form a belief as to the truth of

the allegations in paragraphs 1, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23,
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24, 25, 26, 27, 28 and 29, as defendant has no participation at all in these
purported activities, the defendant denies all of them.

SPECIFIC DENIALS

5. For the truth of the matter as hereunder stated in the Positive

Allegations and Special Defenses of this Answer, defendant specifically denies
paragraphs 9 and 10 of the complaint.

POSITIVE ALLEGATIONS

6. Defendant repleads and incorporates all the above stated allegations,

the truth of the matter are stated hereunder.

7. The supposed exclusive properties of the late Fernando T. Mate remain

undivided in the mass of properties under the estate of his deceased parents,
Jose Mate and Margarita T. Mate, which estate is still to be partitioned among the
heirs, namely: Fernando T. Mate, Msgr. Antonio T. Mate and Lourdes M. Solis.

8. The bank deposits mentioned in par. 10 of the complaint cannot be

partitioned, unless certain bank requirements are complied with, namely: BIR
clearance and certificates of live births of the siblings, among others.

SPECIAL DEFENSES

9. The complaint states no cause of action against the defendants due to

the absence of the elements/requisites of a valid cause of action;

10. Pursuant to Article 103 of the Family Code, should the surviving
spouse (referring to Fernando T. Mate) contract a subsequent marriage, without
complying with the foregoing requirements (that the surviving spouse shall
liquidate the community property judicially or extrajudicially within one year from
the death of the deceased spouse) a mandatory regime of complete separation
of property shall govern the property relations of the subsequent marriage. (The
reason for this is to protect the children of the first marriage considering that their
shares in the estate of their deceased parent have not yet been adjudicated to
them there being no settlement and these shares might be mixed up with the
property of the second marriage if the rule of absolute separation of property is
not provided.)
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11. Pursuant to Article 151 of the Family Code, no suit between members
of the same family shall prosper unless it should appear from the verified
complaint or petition that earnest efforts towards a compromise have been made,
but that the same have failed. If it is shown that no such efforts were in fact
made, the case must be dismissed.

12. The complaint is fatally defective, since the other siblings of Fernando
T. Mate or their successors-in-interests ought to be impleaded, in violation of
Section 4, Rule 3 of the 1997 Rules of Civil Procedure.

13. The court has not acquired jurisdiction over this case for non-payment
of the prescribed docket fee, as ruled in Manchester Development Corp. vs.
Court of Appeals, et al., 149 SCRA 562, in relation to Maersk-Tabacalera
Shipping Agency (Filipinas) Inc. vs. Court of Appeals, et al., GR No. 89747, 20
July 1990. The properties enumerated in the Extrajudicial Settlement of Estate
(Annex A of Complaint) are valued at P1,979,180.00 only. Plaintiff included prime
properties of the late Fernando T. Mate in Tacloban City not yet partitioned by him
and his other siblings, amounting to P40 Million more or less. Likewise, she adds
the bank accounts amounting to about P83,601.34 only. But the plaintiff merely
paid a little over P14,000.00 as filing fee – which is very inadequate and
insufficient to the prescribed docket fee pursuant to Rule 141 of the Rules of
Court.

14. If plaintiff incurred alleged litigation expenses and attorney’s fees and
suffered moral damages, she herself has to be blamed for filing the present
malicious, unfounded, and false complaint against herein defendant.

OPPOSITION TO APPLICATION FOR

PRELIMINARY MANDATORY INJUNCTION

15. In the light of the foregoing, plaintiff clearly has no right in esse over
the paraphernal properties of the first wife of Fernando T. Mate, the same being
mandatory regime of complete separation of property from the subsequent
marriage. It is a well-settled rule that the sole object of a preliminary injunction,
whether prohibitory or mandatory, is to preserve the status quo until the merits of
the case can be heard (Avila vs. Tapucar, 201 SCRA 148). Thus, there is nothing
to be restored to her if the status quo must be preserved. A preliminary
mandatory injunction is not a proper remedy to take property out of the
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possession of the defendants, who are the sole legitimate heirs of Mary Quaile.
Insofar as the properties of Fernando T. Mate, the defendants have to await first
the partition among the heirs of the decedent Jose and Margarita Mate, the
deceased parents of the late Fernando T. Mate.

16. There is no merit to plaintiffs’ application for Preliminary Mandatory

Injunction.

COUNTERCLAIM

17. Defendant repleads, adopts and incorporates by way of reference all

the allegations of the preceding paragraphs of her answer.

18. Having been made to defend himself in an unfounded suit, the

defendant will be compelled to hire the services of a lawyer and shall be
obligated to pay the sum of P50,000.00 as attorney’s fees and appearance fee
of P2,000.00 per court appearance, and she will incur litigation expenses
estimated to be no less than P100,000.00.

19. The filing of this present malicious, unfounded, and false complaint,
defendant suffered sleepless nights, mental anguish, besmirched reputation and
wounded feelings for which plaintiff is liable to pay defendant the sum of
P200,000.00 as moral damages; and in order to deter others who maybe
similarly situated as plaintiff, the latter should be adjudged to pay defendant the
sum of P50,000.00 as exemplary damages.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this

Honorable Court that the complaint be dismissed, and judgment be rendered in
favor of the defendants and against plaintiff, to wit:

1. Dismissing the complaint of the plaintiff with costs against her;

2. Declaring the Extrajudicial Settlement of Estate valid and enforceable.

3. On the counterclaim, defendant prays for judgment ordering the

plaintiffs to pay the defendant P50,000.00 as attorney’s fees and P2,000.00 per
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appearance fee; the sum of not less than P100,000.00 as litigation expenses; the
sum of P200,000.00 as moral damages, and the sum of P50,000.00 as
exemplary damages.

Granting defendant such other relief just and equitable in the premises.

Tacloban City. December 8. 2006.

LEO S. GIRON
Counsel for Defendant Thomas Q. Mate
253 AVenida Veteranos, Tacloban City
Roll No. 37379
IBP Lifetime Member No. 00733
PTR No. 6001273; 1-2-06; Tacloban City

Republic of the Philippines )

Tacloban City ) SS

VERIFICATION AND CERTIFICATION

OF NON-FORUM SHOPPING

I, THOMAS Q. MATE, of legal age, US citizen, a resident of 302 Manini

Place, Kihei, Hawaii, USA, and with post office address at Tacloban City, after
having been first sworn according to law, hereby state:

I am one of the defendants in the above-entitled case; I have caused the

preparation of the foregoing Answer; I have read it and the allegations therein
are true and correct of my own personal knowledge or based on relevant and
authentic records.

That on the COUNTERCLAIM, I have not theretofore commenced any

action or filed any claim or pleading involving the same or similar issues or
subject matter in the Supreme Court, Court of Appeals, lower courts or
administrative bodies and quasi-judicial agency and to the best of my knowledge,
no such other action or claim is pending therein; and if there is such other
pending action or claim, a complete statement of the present status thereof; and,
if I should thereafter learn hereafter that the same or similar action or claim or
pleading has been filed or is pending with the Supreme Court, Court of Appeals,
lower courts, administrative bodies or quasi judicial agency; I shall undertake to
report that fact within five (5) days from knowledge thereof to the court wherein
this aforesaid complaint or initiatory pleading has been filed.

IN WITNESS WHEREOF, I have hereunto set my hand this 8 December

2006 at Tacloban City, Philippines.
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THOMAS Q. MATE
Affiant

SUBSCRIBED AND SWORN to before me this 8 December 2006 at

Tacloban City, Philippines.

Doc. No. ___

Page No. ___
Book No. 51
SERIES OF 2006

COPY FURNISHED:

ATTY. LEON ROJAS III

Counsel for the Plaintiff
Blk. 1, Lot 21, Phase 1
V&G Subd., Tacloban City

EXPLANATION

A legible copy of this ANSWER was furnished Atty. Leon Rojas III by
registered mail for lack of messengerial service. (If served personally, please
disregard explanation.)

LEO S. GIRON