REPUBLIC OF THE PHILIPPINES

SIXTH JUDICIAL REGION

REGIONAL TRIAL COURT
BRANCH ___
BACOLOD CITY

MA. ANTOINETTE I.
GARGARITANO,
Plaintiff,

- versus - CIVIL CASE NO. __________

FOR: SPECIFIC PERFORMANCE
with DAMAGES; CANCELLATION
OF REAL ESTATE MORTGAGE

HELEN POLINIO, TEOFILO B.

POLINIO, AND METRO
ORMOC COMMUNITY
COOPERATIVE (OCCCI),
Defendants,
*---------------------------------------*

COMPLAINT

PLAINTIFF, through undersigned counsel, most respectfully

petitions the Honorable Court and states:

1. Plaintiff is of legal age, Filipino, single and is presently

residing at San Marcelino, Zambales, and is herein represented by her
attorney-in-fact, PETER I. GARGARITANO, of legal age, Filipino and
resident of Block 12 Lot 8, Fortune Town, Barangay Estefania,
Bacolod City. To prove this, attached herein as Annex “A” is a copy
of the Special Power of Attorney executed by the plaintiff.

2. Defendants Helen Polinio and Teofilo B. Polinio Jr., on the

other hand, are of legal ages, Filipinos, married to each other, and can
be served with summons and other processes of this court at Bacolod
City National High School, Barangay Taculing, Bacolod City.

3. Defendant Metro Ormoc Community Cooperative is a

cooperative with principal office address at Arradaza Street, Ormoc
City and branch office at Magsaysay St., Bacolod City, where it can be
served with summons and other processes of this court.

4. Sometime before February 2010, defendant Helen Polinio

offered plaintiff her house and lot located at Block 12 Lot 8, Fortune
Town, Barangay Estefania, Bacolod City for One Hundred Seventy
Thousand (Php170,000.00), with the plaintiff assuming defendants’
obligation with Government Service Insurance System (GSIS) under
Real Estate Mortgage (REM) under Entry No. 242671. Said parcel of
land is covered by Transfer Certificate Title No. 228416 of the
Register of Deeds of Bacolod City. Attached herewith is a copy of the
said title as Annex “B” series.

5. Plaintiff agreed to purchase the said house and lot on

February 2, 2010, the parties executed a Contract To Sell. Attached
herewith as Annex “C” and made an integral part of this complaint
is a copy of the said contract.

6. In the meantime, either plaintiff and/or her relatives

transferred and stayed on the subject property up to this date.

7. To show of good faith and upon pleadings of the

defendants to give them an advance payment as they need money to
spend for the funeral expenses of her father and medical expenses for
her child who was stricken with dengue, plaintiff gave defendant
Helen Polinio, on separate occasions, a total of Ninety-Four
Thousand Pesos (Php94,000.00), Philippine Currency, which
they agreed, to be applied on the purchase price of the said house and
lot.
 To prove this, attached herewith are the photocopies of some of
the receipts as Annexes “D” and “D-1”, respectively

8. In addition to this and in faithful compliance with her

obligations under said Contract to Sell (Annex “C”), plaintiff has also
paid in full the obligation of the defendants with GSIS under Real
Estate Mortgage (REM) Entry No. 242671 which was in the amount of
One Hundred Seventy-Four Thousand, Two Hundred Forty-
Three and 76/100 (Php174,243.76), Philippine Currency.

9. As a consequence of said payment, the GSIS released the

original duplicate owner’s copy of TCT No. T-228416 to defendant
Helen Polinio. To prove this, attached herewith as Annex “E” is
certified true copy of the Release of Real Estate Mortgage.

10. Several and repeated demands were made to the above-

named spouses to surrender the owner’s duplicate to herein plaintiff
for registration of the above-cited contract to sell and ultimately the
execution of the Deed of Absolute Sale but to no avail.

11. Fearing that the defendant would not comply with her
obligations under the agreement, plaintiff have caused the annotation
of her adverse claim on said title before the Registry of Deeds of
Bacolod City. To prove this, attached herewith as Annex “F” is a
copy of the Affidavit of Adverse Claim of the plaintiff. To prove the
annotation of said adverse claim on the title, kindly refer to Annex “B-
4”.

12. In the meantime and on September 4, 2012, Plaintiff

Gargaritano, through counsel, sent a Tender of Payment to Defendant
Polinio. Attached herewith as Annex “G”, and “G-1” are the Letter,
and the registry receipt. Undersigned counsel has requested with
Post Office of Bacolod City for certification as to the receipt of said
letter by the defendant but said office has not sent its reply, appended
herewith is said letter dated January 23, 2013 as Annex “H”.

13. To the surprise of the plaintiff, defendants through counsel

sent a Notice of Rescission of the said contract to sell on sometime on
October 2012, which a copy is attached herewith as Annex “I”.

14. Again, to the surprise of the plaintiff, it was

discovered later that the defendants have again used the title as a
collateral to the loan they applied with Metro Ormoc Community
Cooperative for the sum of One Hundred Fifty Thousand Pesos
(Php150,000.00) on August 23, 2011. To prove this, attached
herewith as Annex “J” is a copy of the real estate mortgage executed
by defendant Polinio. This real estate mortgage is annotated on the
back of TCT No. 228416 as Entry No. 2011006905 (please see Annex
“B-4”).

15. From the allegations above, defendants have clearly

manifested their ungratefulness to plaintiff herein and have no
intentions of delivering said title as stated in the Contract to Sell.

16. In support of this complaint, plaintiff Gargaritano

hereby respectfully manifests that she is willing to deposit with this
Honorable Court by way of consignation the balance of the purchase
price in amount of Seventy-Six Thousand Pesos
(Php76,000.00).

17. Considering that the plaintiff has successfully

registered her notice of adverse claim in the subject title before the
Registry of Deeds before the subject real estate mortgage, defendant
Metro Ormoc is clearly notified and has prior knowledge of the rights
of the plaintiff herein.
 18. In L.P. Leviste and Company, Inc. v. Noblejas (L-
28529, April 30, 1979, 89 SCRA 52)., the Supreme Court explained
when an inscription of an adverse claim is sufficient to affect third
parties, thus:

The basis of respondent Villanuevas adverse claim was an

agreement to sell executed in her favor by Garcia Realty. An
agreement to sell is a voluntary instrument as it is a wilful act of the
registered owner. As such voluntary instrument, Section 50 of Act
No. 496 [now Presidential Decree No. 1529] expressly provides that
the act of registration shall be the operative act to convey and affect
the land. And Section 55 of the same Act requires the presentation
of the owners duplicate certificate of title for the registration of any
deed or voluntary instrument. As the agreement to sell involves an
interest less than an estate in fee simple, the same should have been
registered by filing it with the Register of Deeds who, in turn, makes
a brief memorandum thereof upon the original and owners
duplicate certificate of title. The reason for requiring the production
of the owners duplicate certificate in the registration of a voluntary
instrument is that, being a wilful act of the registered owner, it is to
be presumed that he is interested in registering the instrument and
would willingly surrender, present or produce his duplicate
certificate of title to the Register of Deeds in order to accomplish
such registration. However, where the owner refuses to
surrender the duplicate certificate for the annotation of
the voluntary instrument, the grantee may file with the
Register of Deeds a statement setting forth his adverse
claim, as provided for in Section 110 of Act No. 496. In such
a case, the annotation of the instrument upon the entry book is
sufficient to affect the real estate to which it relates, although
Section 72 of Act No. 496 imposes upon the Register of Deeds the
duty to require the production by the [r]egistered owner of his
duplicate certificate for the inscription of the adverse claim. The
annotation of an adverse claim is a measure designed to
protect the interest of a person over a piece of real
property where the registration of such interest or right is
not otherwise provided for by the Land Registration Act,
and serves as a notice and warning to third parties dealing
with said property that someone is claiming an interest on
the same or a better right than the registered owner
thereof. (emphases supplied)

19. Since the rights of the plaintiff is preferred than the

real estate mortgage executed between defendants, it is proper that
said mortgage be removed in the subject title.
 20. Further and because of the defendants Polinios’
unwarranted and unjustified avoidance and refusal to accept payment
of the balance of the purchase price and to comply with her obligation
under their contract, Plaintiff Gargaritano suffered sleepless night,
serious anxiety, mental anguish and wounded feelings. Moreover, to
teach the public way of example the importance of honoring their
obligations in whatever contracts they enter into, defendants should
likewise be ordered to pay exemplary damages. With this, defendants
should be ordered to pay plaintiff in the amount of Php100,000.00 as
moral and exemplary damages.

21. Also because of defendant’s unwarranted and

unjustified avoidance and refusal to comply with her obligations
under their contract, Plaintiff Gargaritano was constrained to ask
assistance of a lawyer to seek legal remedy by filing this complaint
before the Honorable Regional Trial Court of Bacolod City, agreeing
to pay him acceptance of fees of Php50,000.00, appearance fees of
Php3,000.00 per hearing and termination/success fee of 25% of the
amount plaintiff would be able to collect or 50,000.00, whichever is
higher, for which defendants should be ordered to reimburse.

22. Also, because of the defendants’ unwarranted and

unjustified avoidance and refusal to accept payment of the balance of
the purchase price, Plaintiff Gargaritano incurred a considerable sum
for litigation expenses, which will be proven in the course of the
proceedings.
 PRAYER

WHEREFORE, it is respectfully prayed that, an Order be issued:

1. Directing the Register of Deeds of Bacolod City to cancel

and remove the Entry No. 2011006905 in TCT No. T-
228416.

2. Directing Plaintiff Gargaritano to deposit with this court the

amount of Seventy-Six Thousand Pesos (Php76,000.00)
pursuant to the Contract to Sell dated February 2010; and
directing Defendant Polinio to execute a registrable Deed of
Absolute Sale or other necessary documents to facilitate the
transfer of title or ownership of the subject house and lot in
the name of the Plaintiff Gargaritano; on in the alternative,
after depositing said amount of Php76,000.00, ordering the
Register of Deeds of Bacolod City to cancel TCT No. T-
228416 and, in lieu of the same, issue a new one under the
name of plaintiff Ma. Antoinette I. Gargaritano.

3. Ordering Defendant Polinio to pay Plaintiff Gargaritano the

following:

a. Moral and Exemplary damages of P100,000.00;

b. Acceptance Fees in the amount of P50,000.00,
Appearance Fees of P4,000.00 per hearing,
Termination/Success Fee of P50,000.00 or 25% of the
actual amount to be recovered, whichever is higher;
and,
c. Costs of litigation.

4. Plaintiff further prays for such relief, which is just equitable

in the premises.
Quezon City for Bacolod City,

March 21, 2017.

ROLANDO R. TORRES, JR.

Counsel for Plaintiff
Rm. 305 3/F Capitol Masonic Corporation Bldg,
No. 35 Matalino Street, Diliman, Quezon City 1101
Telephone No.: 02-4341006/02-3461507
IBP No. 1060072/01-10-17/Quezon City
PTR No. 3865318/01-10-17/Quezon City
Roll of Attorneys No. 48136
MCLE COMPLIANCE CERTIFICATE NoV –
0009108, July 14, 2015
 VERIFICATION/CERTIFICATION

I, MA. ANTOINETTE I. GARGARITANO, of legal age, Filipino, with

address at San Marcelino, Zambales, after having been duly sworn to in
accordance with law, hereby depose and state:

1. That I am the PLAINTIFF in the above-entitled case.

2. That I have caused the preparation of the foregoing Complaint.

3. That I have read and understood the contents of the foregoing

Complaint and the allegations herein contained are true and correct to
the best of my own knowledge and based on authentic records.

4. That the plaintiff has not commenced any other action or proceeding
involving the same in the Supreme Court, Court of Appeals or any
other tribunal or agency.

5. To the best of my knowledge, no such other action or proceeding is

pending in the Supreme Court, Court of Appeals or any other tribunal
or agency.

6. That should plaintiff and I thereafter learn that a similar action or

proceeding has been filed or is pending before the Supreme Court,
Court of Appeals or any other tribunal or agency, I undertake to report
that fact within five (5) days therefrom to the court or agency where the
original pleading and sworn certification have been filed.

IN WITNESS WHEREOF, I have hereunto set my hand this ___ th day

of _________ 2017 in ________________________ City.

MA. ANTOINETTE I. GARGARITANO

Affiant

SUBSCRIBED AND SWORN to before me this ___th day of ____________

2017, affiant having exhibited to me her ________________ ID No.
______________________ issued by the
________________________as proof of her identity and who is known to
me to have executed this VERIFICATION/CERTIFICATION.

Doc. No. ______;

Page No. ______;
Book No. ______;
Series of 2017.