Pretrial-brief (1).docx

Republic of the Philippines REGIONAL TRIAL COURT 7th JUDICIAL REGION BRANCH 61, DAKIT BOGO CEBU

ELISEO M. RAMIREZ, Plaintiff,

Civil Case No.: BOGO-03571 For: INJUNCTION, Declaration of Nullity of Real Estate Mortgage with Prayer for the Issuance of A Writ of Preliminary Injunction and Temporary Restraining Order (TOR) and Damages

- versus -

ANTONIO DEO, and EVA VENTIC, Defendants. x -----------------------------------------------------------------------------x PRE-TRIAL BRIEF OF THE DEFENDANT The Defendant, represented by the undersigned counsel, respectfully states: I. POSSIBILITY OF AMICABLE SETTLEMENT OR ALTERNATIVE MODES OF DISPUTE RESOLUTION The Defendant is willing to consider any amicable settlement or undergo alternative modes of dispute resolution with respect to the primary prayer of this petition. II. PROPOSED STIPULATION OF FACTS The defendant hereby admits the following facts: a. Plaintiff is a Filipino, of legal age, married to JERONIMA RAMIREZ, and a resident of Barangay Guiwanon Bantayan, Cebu while the private defendant, ANTONIO DEO is a Filipino, of legal age, and a resident of Tereplen St., Bangay Bantigue, Bantayan, Cebu;

b. The public defendant EVA VENTIC is the court sheriff of the Regional Trial Court Branch 61, Bogo City and is sued in her official capacity as court sheriff therein; c. Plaintiff’s wife and children, who are real parites, are not included as parties in the case;

d. Plaintiff and his wife, JERONIMA is the declared owner of the residential house and lot situated at Guiwanon Bantayan, Cebu covered with Real Property Tax Declaration with TD number 25264; e. Private defendant is engaged in lending business only on occasional instances as he will only make accommodations to some persons who are in dire need of financial assistance; f. Private Defendant granted a loan request from Plaintiff’s wife JERONIMA on April 6, 2013 with the principal amount of Two Hundred Pesos (Php 200, 000.00) with an agreement that JERONIMA would secure the said loan with a collateral by executing a Real Estate Mortgage that would cover the principal amount plus interest. g. Private Defendant knew that the Tax Declaration of the subject lot offered as collateral is under the name of the plaintiff and his wife, thus the reason for his initial refusal to grant the loan application with the Real Estate Mortgage as security. However, with JERONIMA’s insistence, she represented that she was authorized by the plaintiff. JERONIMA presented an authority duly signed by the plaintiff to the Private defendant which acceded thereafter. h. When the due date came, JERONIMA defaulted payment. The total obligation due to interests, penalty and other charges amounted to Four Hundred Forty Thousand Pesos (Php 440, 000.00). i. The Plaintiff admitted, as stated in his Complaint, that he and his wife had an obligation to the private defendant but incurred default in the payment of the loan obligation and that FIVE (5) years has elapsed since the said obligation was incurred; j. Private Defendant applied for an application for Extra-Judicial Foreclosure of Real Estate Mortgage in the Regional Trial Court of Bogo City. Thereafter, a Notice of Extra-Judicial Sale and

Notice to Parties of Sheriff’s Auction Sale dated March 6, 2018 was issued on the mortgaged Residential House and Lot. k. A public auction sale of the subject mortgaged property was conducted on April 30, 2018, and the subject property was sold therein.

III. ISSUES TO BE TRIED AND RESOLVED A.

WHETHER OR NOT THE REAL ESTATE MORTGAGE IS NULL AND VOID

B.

WHETHER OR NOT THE EXTR-JUDICIAL FORECLOSURE OF THE REAL ESTATE MORTGAGE AND THE AUCTION SALE WAS VALID

C. WHETHER OR NOT A WRIT OF PRELIMINARY INJUNCTION IS NECESSARY

D. WHETHER OR NOT THE CASE SHOULD BE DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION

IV. DOCUMENTS TO BE PRESENTED A. The Deed of Real Estate Mortgage executed by JERONIMA as the mortgagor and ANTONIO DEO as the mortgagee to prove that the loan obligation of JERONIMA was secured by mortgaging the residential house and lot of the spouses ELISEO RAMIREZ and JERONIMA RAMIREZ; B. An Authorization Letter signed by ELISEO authorizing JERONIMA to mortgage their Residential House and Lot to prove that the Plaintiff, ELISEO, gave his consent to the mortgage of their conjugal property; C. The application for Extra-Judicial Foreclosure of Real Estate Mortgage, the Notice of Extra-Judicial Sale, and Notice of Parties of Sheriff’s Public Auction Sale to prove that the proper procedure for the foreclosure of the subject mortgaged house and lot was observed. Also, to prove the fact that the subject house and lot was Foreclosed and Sold in a public auction; Other documents as may be determined to be relevant to the case during the course of trial.

V. WITNESSES TO BE PRESENTED A. Defendant, ANTONIO DEO, will testify as to the truthfulness of his allegations, denials and that which facts he believes to be true. B. Defendant also reserves the right to present one witness if the need arises. VI. AVAILABLE DATES FOR TRIAL The Defendant respectfully requests that the trial dates be agreed upon in open court at such dates and time convenient to the parties and the calendar of this Honorable Court.

Cebu City, January 22, 2019.

NATHANIEL N. CLARUS Counsel for Defendant 5th floor Room 508 Sugbutel North Reclamation Area Cebu City Contact Nos.: 233-6329; 512-3085 IBP LIFETIME NO. 1058951/1-3-17 CEBU CITY PTR NO. O.R. CEB- 177914 Issued on 1/4/19 ROLL NO. 38708 MCLE COMPLIANCE NO. 0015044 Issued on April 16, 2016 Copy furnished: ATTY. JASON G. REPASO SUITE 204 OFTANA BLDG., COR. JASMINE ST – DON PEDRO CUI-STS CEBU CITY

Republic of the Philippines REGIONAL TRIAL COURT 7th JUDICIAL REGION BRANCH 61, DAKIT BOGO CEBU

ELISEO M. RAMIREZ, Plaintiff,

Civil Case No.: BOGO-03571 For: INJUNCTION, Declaration of Nullity of Real Estate Mortgage with Prayer for the Issuance of A Writ of Preliminary Injunction and Temporary Restraining Order (TOR) and Damages

- versus -

ANTONIO DEO, and EVA VENTIC, Defendants. x -----------------------------------------------------------------------------x

MOTION TO SET CASE FOR PRELIMINARY HEARING ON AFFIRMATIVE DEFENSES

COMES NOW, the defendant, through the undersigned counsel and unto this Honorable Court, most respectfully avers: In his ANSWER dated May 5, 2018, defendant alleged as affirmative defenses the following: 1. Plaintiff is not the real party in interest. Plaintiff’s wife and children should have been included as plaintiffs in this case because they are also real parties in interest; they stand to be benefited or injured by the judgment in the suit, or entitled to the avails of the suit. 2. The Assessor’s Office of Bantayan Cebu has not been impleaded in this case hence could not be ordered by the Honorable Court to cancel the subject Real Estate Mortgage recorded in their Office.

WHEREFORE, premises considered, defendant prays that a hearing for the affirmative defenses be conducted and heard first.

Other relief and remedies as may be deemed just and equitable under the premises are likewise prayed for. City of Cebu, January 22, 2019.

NATHANIEL N. CLARUS Counsel for Defendant 5th floor Room 508 Sugbutel North Reclamation Area Cebu City Contact Nos.: 233-6329; 512-3085 IBP LIFETIME NO. 1058951/1-3-17 CEBU CITY PTR NO. O.R. CEB- 177914 Issued on 1/4/19 ROLL NO. 38708 MCLE COMPLIANCE NO. 0015044 Issued on April 16, 2016

THE CLERK COURT REGIONAL TRIAL COURT BRANCH 61 DAKIT, BOGO CITY, CEBU GREETINGS: Please submit the foregoing motion for the consideration and approval of the Honorable Court on __________________, 20__ at _____.

ATTY. NATHANIEL CLARUS

ATTY. JASON G. REPASO Counsel for the Plaintiff Suite 204 Oftana Bldg., Cor. Jasmine St – Don Pedro Cui-Sts Cebu City GREETINGS:

Please be notified that the foregoing motion shall be submitted for the consideration and approval of the Honorable Court on ________________, 20____ at ______.

ATTY. NATHANIEL CLARUS

Copy furnished: ATTY. JASON G. REPASO SUITE 204 OFTANA BLDG., COR. JASMINE ST – DON PEDRO CUI-STS CEBU CITY