Republic of the Philippines

Municipal Trial Court in Cities

Second Judicial Region
Branch 1
Santiago City

HDMF – PAG-IBIG FUND, CIVIL CASE No. 0-17-

001
Represented by its president, FOR: Unlawful
Detainer
RHIC RHYAN LHEE V. FABIAN,
Plaintiff,

-versus-

JIMMY I. PERU and

ELVIRA M. OLI,
Defendants,
x-------------------------------------------x

POSITION PAPER FOR DEFENDANT

DEFENDANT, through counsel most respectfully submits this position

paper and avers:

TIMELINESS

The Defendant, through counsel received an order from said Court

dated January 17, 2017, requiring the Undersigned Counsel to file position
paper within ten (10) days from receipt thereof or on or before January 27,
2017, hence said position paper is filed.
 STATEMENT OF THE CASE

This is an action for Unlawful Detainer with Damages commenced by

the Plaintiff, HDMF – PAG-IBIG FUND, represented by its president, Rhic
Rhyan Lhee V. Fabian, against the Defendants, Jimmy I. Peru and Elvira
M. Oli, before the Honorable Court. The subject matter of this action is a
piece of land identified as LOT No. 1234 covered by TCT No. 1234 with an
area of 160 square meters situated at 456 Bacardi Street, Santiago City.
Plaintiff claims that said property is unlawfully in occupation and
possession by Jimmy I. Peru and Elvira M. Oli. Defendants denied the
allegation and interposed the defense that there is no case of unlawful
detainer since plaintiff’s right to commence the action has already
prescribed from the time of the last and final demand dated Ocotber 15,
2015, that Defendant Elvira M. Oli has no material participation to plaintiff’s
claim, that plaintiff should be made to pay for Defendants’ Attorney’s Fees
and that the case should be dismissed.

Both parties have presented their pieces of evidence. The case is

now submitted for decision before the Honorable Court.

STATEMENT OF FACTS

1. The Defendant is the owner of the parcel of land covered by TCT No.
1234 located at 456 Bacardi Street, Santiago City. The parcel of land
was issued by the defendant, in favor of HDMF PAG-IBIG FUND, as
a security of the loan he obtained as evidenced by the Addendum To
Loan And Mortgage Agreement. Attached is a copy of the Addendum
To Loan And Mortgage Agreement as annex “A” and made an
integral part hereof. A copy of TCT No. 1234 is likewise attached as
annex “B” and made integral part of this position paper.

2. The property was occupied by Elvira M. Oli, through verbal

agreement with Defendant, in consideration of an amount as monthly
rental.

3. That Defendant, Jimmy I. Peru, was given opportunity to settle his

obligations and was notified through demand letters from HDMF
PAG-IBIG FUND. After repeated oral and written demands for the
settlement of his obligations, the defendant still refused to pay the
amount of obligation.

4. The subject property is unlawfully occupied and possessed by Jimmy

I. Peru, depriving Plaintiff of the rights and enjoyment of the said
property.
 5. In controverting the instant complaint, the Defendants raised the
following defenses:

a. That the Plaintiff has lost its right to bring the action from the
time of the last and final demand letter;
b. The Plaintiff did not suffer moral and actual damages;
c. That defendant Elvira M. Oli has no material participation and
connection to the case filed by Plaintiff.

NATURE OF AN ACTION FOR EJECTMENT

Section 1, Rule 70 of the Rules of Court provides:

Section 1. Who may institute proceedings, and when.-

Subject to the provisions of the next succeeding section, a
person deprived of the possession of any land or building by
force, intimidation, threat, strategy, or stealth, or a lessor,
vendor, vendee, or other person against whom the possession
of any land or building is withheld after the expiration or
termination of the right to hold possession, by virtue of any
contract, expressed or implied, or the legal representatives or
assigns of any such lessor, vendor, vendee, or other person,
may, at any time within one (1) year after such unlawful
deprivation or withholding of possession, bring an action in the
proper Municipal Trial Court against the person or persons
unlawfully withholding or depriving of possession, or any person
or persons claiming under them, for the restitution of such
possession, together with damages and costs.

Forcible entry and unlawful detainer cases are two distinct actions
defined in the afore-cited provision. In Forcible Entry, one employs force,
intimidation, threat, strategy or stealth to deprive another of physical
possession of the land, (Montanez vs. Mendoza, 392 SCRA 541).
Possession by the defendant of the subject property is unlawful ab initio.

On the other hand, Unlawful Detainer involves the person’s

withholding from another of the possession of real property to which the
latter is entitled, after the expiration or termination of the former’s right to
hold possession under the contract, either expressed or implied (Republic
vs. Luriz, 513 SCRA 140). Possession by the defendant of the property is
originally lawful but becomes illegal by virtue of the termination of his right
of possession under his contract with the plaintiff, either expressed or
implied, ( Tirona vs. Alejo, 367 SCRA 17).

In Go, Jr. vs. CA, 362 SCRA 755, it was adjudicated that tolerance
must be present right from the start of possession sought to be recovered
to be within the purview of unlawful detainer.

Basic is the rule that what determines the nature of the action and
what court has jurisdiction over it are the averments or allegations in the
complaint and the character of the remedy or relief sought. As in the case
of unlawful detainer, the permission or tolerance must be present at the
outset or at the beginning of the possession. If not, a case of forcible
entry is the proper remedy. The time or period mandated by law should be
complied with. Otherwise, prescription steps into the picture (Notes and
Cases on Ejectment, Igmidio Cuevas Lat, p.1, 2005).

The nature of defendant’s entry into the land determines the cause of
action. If entry is illegal, it is Forcible Entry and the action must be filed
within one year from the date of unlawful intrusion. Otherwise, the
appropriate action is Unlawful Detainer and should be filed within one year
from the time possession by the defendant became illegal.

The one year period within which to bring an action for forcible entry
is reckoned from the date of actual entry to the land, (Gener vs. De Leon,
367 SCRA 631). After the lapse of the one-year period, the party
dispossessed of a parcel of land can file either an accion publiciana or
accion reivindicatoria.

He who alleges must prove and the party having the onus probandi
must establish his case by preponderance of evidence.

DEFENDANTS’ POSITION AND ARGUMENTS

PLAINTIFF HAS LOST ITS RIGHT TO INSTITUTE THE CASE

DEPRIVING THE COURT OF JURISDICTION

The plaintiffs’ complaint for unlawful detainer is fundamentally

inadequate. There is practically no averment as to when and how
possession by tolerance of the defendants began. In their complaint, the
plaintiffs only made a general claim that the defendants possessed the
property upon their predecessor’s tolerance sans factual substantiation. In
Spouses Valdez, Jr. vs. CA, 523 Phil. 39 (2006), the Supreme Court ruled
that the failure of the complainants to allege key jurisdictional facts
constitutive of unlawful detainer is fatal and deprives the MTCC of
jurisdiction over the action.

As held by the Supreme Court in Sarmiento vs. CA, 320 Phil. 146
(1995), even if one is the owner of the property, the possession thereof
cannot be wrested from another who had been in the physical or
material possession of the same for more than one (1) year by resorting to
a summary action of ejectment. At this juncture, it is worthy to note that at
the time of the filing of this case, defendants had been in physical
possession of the property for more or less forty four (44) years.

Indeed, if the plaintiffs are the owners of the subject property and
they were unlawfully deprived of the real right of possession or ownership
thereof, they should present their claim before the RTC in an accion
publiciana or an accion reivindicatoria, and not before the municipal trial
court in a summary proceeding of unlawful detainer or forcible entry.

Clearly, the plaintiffs’ evidence are not only inadequate to

substantiate their claim against the defendants. Their complaint failed to
make out a case of forcible entry. Hence, their complaint must necessarily
fail. And even assuming for the sake of argument that the complaint alleges
forcible entry, the same action is barred by prescription based on the
arguments posited at the outset.

THE PLAINTIFF IS LIABLE FOR DAMAGES

Defendants’ reputation in the community had been tainted by reason

of the plaintiffs’ baseless or unfounded allegations. Thus, plaintiff is liable
for moral damages.

In the interest of public good and to dissuade others from filing a

similar complaint, plaintiff should pay exemplary damages.

Since defendants were compelled to secure the services of a lawyer

to protect their rights and interests, plaintiffs should be ordered to pay the
attorney’s fee and honorarium per court appearance incurred by the
defendants in the case at bar.

PRAYER

WHEREFORE, on the basis of all the foregoing, it is respectfully

prayed that this position paper be given due consideration in the resolution
of this case and that judgment be rendered in favor of the defendants by
DISMISSING the complaint for lack of merit, and to award the defendants
damages in such amount as the court may deem reasonable.

Other reliefs that are just and equitable under the premises are
likewise prayed for.

City of Santiago, January 27, 2017.

FERNANDEZ AND ASSOCIATES

LAW OFFICE
Counsel for the Defendant
National Hi-Way, Villasis,
Santiago City

by:

ATTY. GRESTER A.
FERNANDEZ
Roll No. 2345678
IBP No. 23456/1-3-2017/Santiago
PTR No. 23456/1-3-2017/Santiago
 VERIFICATION

We, JIMMY I. PERU and ELVIRA M. OLI, all of legal age, Filipinos,
married and bonafide residents of 456 Bacardi Street, Santiago City, under
oath, hereby depose and state as follows:

1. We are the defendants in the above-entitled Complaint;

2. We have caused the preparation and filing of the foregoing

Position Paper;

3. We have read the contents thereof and the facts as stated therein
are true and correct and based on authentic records;

IN WITNESS WHEREOF, we have hereunto affixed our signatures

this 26th day of January, 2017 at Santiago City.

JIMMY I. PERU ELVIRA M. OLI

Affiant Affiant

SUBSCRIBED AND SWORN to before me this 23rd day of July, 2015

at Echague, Isabela. I hereby certify that I personally examined the affiants
and I am satisfied that they have read and understood the contents of their
Position Paper and they attested that the same is a product of their own
free will. Affiants have individually exhibited to me their Identification Card
bearing their picture and signature as competent proof of their identity.

Doc No._002_;
Page No._001;
Book No._01_;
Series of 2017.

Copy furnished via registered mail:

ATTY. DIONISIO GANER

Counsel for the Palintiff
Unit 888, NC Tower I,
Johnny Walker Ave., Santiago City
EXPLANATION: A copy of the foregoing Position Paper was duly
furnished Atty. Abraham B. Sable in his given address via registered mail
pursuant to Section 7, Rule 13 of the Rules of Court due to distance, time
and expense to effect personal service.