Republic of the Philippines

REGIONAL TRIAL COURT

12th Judicial Region
Branch ___
Tacurong City

John Hann Hunk Pompong, CIVIL CASE No. 28-06-18-089

Plaintiff,

FOR: Rescission of Contracts, damages

- versus – and Attorney’s Fees.

Al-Zahar Hunker Saiden,

Defendants.
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MEMORANDUM FOR PLAINTIFF

COMES NOW, the Complainant, assisted by the undersigned counsel and

unto this Honorable Court most respectfully submit this Memorandum, to wit:

STATEMENT OF THE CASE

Plaintiff John Hann Pompong (hereinafter referred to as “Hunk”) filed an action
for rescission of contracts, damages and Attorney’s Fees.

STATEMENT OF THE FACTS

Plaintiff is a Filipino, of legal age, married, and residing at New Carmen, Tacurong
City, where he may be served with summons, papers and other process of this
Honorable Court.

Defendant Al-Zahar Hunker Saiden is a Filipino, of legal age, single, and residing at
Brgy. New Isabela, Tacurong City, where he may be served with summons, papers and
other process of this Honorable Court.

Defendant Al-Zahar Hunker Saiden is a real estate broker and an engineer who
engage in the business of buying real properties and offer to sell the same into a much
higher price.

That plaintiff John Hann Hunk Pompong is an incumbent Board Member of the 2nd
District of Maguindanao, businessman and is the owner of parcel of land with an area
of 1250 square meters located in an high end area of San Pablo, Tacurong city
evidenced by Transfer of Certificate of Title No. 13457896 (EXHIBIT “A”).

Both parties have capacity to sue and to be sued.

 That on March 26, 2018, Plaintiff and Defendant entered into contract to sell
involving the said parcel of land for P 7,500,000 payable by installments for a period of
12 months evidenced by Contract to Sell (ANNEXED “B”). That the defendant agreed
to pay for 1,250,000 as down payment and the remaining balance shall be paid in
equal 12-month installment for 520,840.00 payable in every 27th day of the month
beginning April 27, 2018.

That the deed of sale be executed in favor of the defendant upon the completion
and full payment of installments and consequently title appertaining thereto be
transferred in the name of the latter.

That on April 27, 2018, defendant defaulted in paying the first installment which
constraints the plaintiff to send demand letter attached hereto (ANNEXED “C”)
addressed to defendant but failed to accede to the demand.

That on May 27, 2018, another demand letter sent by plaintiff to defendant
demanding the payment of present installment and previously defaulted installment as
well as a warning that should the defendant resists and defaulted in paying his
obligations, the plaintiff will move to rescind the contract. However, the defendant did
not take actions to the demand and profusely resisted in answering the call by the
plaintiff. Copy of the demand letter attached hereto (“ANNEXED “D”).

And on June 28, 2018, Plaintiff went to the house of the defendant to personally
handover the demand letter but defendant spikes actuations of berating while refusing
to receive the demand letter evident of bad faith and ill motive to comply with the
obligation incumbent upon him. (ANNEXED “E”)

That because of this display of ill motive and bad faith, evident by profusely refusing
to accede to the agreement the plaintiff and defendant faithfully entered into in the
contract to sell and by consistently and unjustly ignoring the demand letters, the plaintiff
suffered delay, anxiousness and sleepless nights.

That the plaintiff is left with no other choice but to move to rescind the contract to
sell between the Plaintiff Mr. Pompong and defendant Mr. Saiden.

And that due to breaching the contract to sell of the defendant by unjustly refusing
and complying his obligations, the plaintiff suffered emotional distress, anxiousness and
sleepless nights which should be indemnified by way of moral damages;

Consequently, Plaintiff was constrained to engage the services of counsel to whom

it obligated itself to pay as Attorney's Fees the amount equivalent to TWENTY FIVE
PERCENT (20%) of the total amount to be adjudged in favor of plaintiffs, and the costs
of this suit.
 ISSUES
1. Whether or not the contract to sell between plaintiff and defendant may be
rescinded.

2. Whether or not the defendant is liable for damages.

ARGUMENTS

The contract to sell between plaintiff and defendant is rescissible under

Article 1191 of the Civil Code on Obligations and Contracts which provides thus:
The power to rescind obligations is implied in reciprocal ones, in case of the
obligors should not comply with what is incumbent upon him. The injured party
may choose between the fulfillment and the rescission of the obligation, with the
payment of damages in either case. He may also seek rescission, even after he
has chosen fulfillment, if the rescission becomes impossible. It was agreed that
the defendant should pay the first installment of the contract to sell a lot on April
27, 2017 but the defendant did not just simply defaulted the payments but also
displayed erratic behavior, stubbornness and ill-manner towards the plaintiff
evident bad faith. His actuations clearly demonstrated not just his inability to
fulfill for his contractual obligations but his intentional delay and refusal to pay
the plaintiff and apathy towards the latter.

Even assuming arguendo that the contract to sell between the parties is
specifically governed by RA 6552 or AN ACT TO PROVIDE PROTECTION TO
BUYERS OF REAL ESTATE ON INSTALLMENT PAYMENTS, the defendant cannot take
shield under the protection of this law to defeat the purpose and intention of the
parties when they had faithfully entered the contract. Thus, the rescission of the
contract is availing in the present situation as R.A 6552 finds no application in the
latter case. Hence, Section 3 of R.A 6552 provides that.
“.. In all transactions or contracts involving the sale or financing of real estate on
installment payments, including residential condominium apartments but excluding industrial
lots, commercial buildings and sales to tenants under Republic Act Numbered Thirty-eight
hundred forty-four, as amended by Republic Act Numbered Sixty-three hundred eighty-nine,
where the buyer has paid at least two years of installments, the buyer is entitled to the following
rights in case he defaults in the payment of succeeding installments:

(a) To pay, without additional interest, the unpaid installments due within the total grace
period earned by him which is hereby fixed at the rate of one month grace period for
every one year of installment payments made: Provided, That this right shall be exercised
by the buyer only once in every five years of the life of the contract and its extensions, if
any.

(b) If the contract is canceled, the seller shall refund to the buyer the cash surrender
value of the payments on the property equivalent to fifty per cent of the total payments
made, and, after five years of installments, an additional five per cent every year but not
to exceed ninety per cent of the total payments made: Provided, That the actual
cancellation of the contract shall take place after thirty days from receipt by the buyer
of the notice of cancellation or the demand for rescission of the contract by a notarial
act and upon full payment of the cash surrender value to the buyer.
Down payments, deposits or options on the contract shall be included in the computation of the
total number of installment payments made.

Based on the afore-cited provision of the law, it is crystal clear that R.A
6552 cannot be invoked by the defendant in order to protect his interest nor
does it find any application in this case since the law only applies to sale or
financing of real estate on installment payments where the buyer pays at least
two(2) years of installments from which, the defendant had never paid any of
the installments in spite of repeated demands by the plaintiff and the contract
to sell is only payable within the period of twelve(12) months reckoning from the
first agreed month to pay which fell short from the required two year paid
installments in order for the law to take into application. Thus, it was a desperate
move for the defendant to evade his contractual infractions by invoking the
provisions of RA 6552 in order to prevent the rescission of the contracts when it
was self-evident that the latter law cannot in any way applicable in the case at
bench. Hence, the rescission of the contract is valid under Article 1191 of the
Civil Code for non-compliance with the contract to sell between the parties and
the defendant can never in any manner shield himself under the mantle of
protection of R.A 6552 and reap its benefits let alone give the latter 30 days
grace period.

PRAYER
WHEREFORE, the above premises considered, it is respectfully prayed of this
Honorable Court after hearing on the merits, that:

a. The contract to sell between the Plaintiff and defendant be rescinded

and be entitled to the 3 months unrealized profits for defaulted
installments and treat the same as reasonable rental fees as well as 10%
interest thereto.

b. Defendants be ordered to pay moral damages in the amount of ONE

HUNDRED FIFTY THOUSAND (Php 150,000.00);

c. Defendants be ordered to pay attorney’s fees in an amount equivalent to

TWENTY PERCENT (20%) of the total amount to be adjudged in favor of
plaintiffs;

d. Defendants be ordered to pay the costs of this suit.

Other reliefs just and equitable under the premises are likewise prayed for.
Respectfully submitted this 15th July, 2018 at Tacurong City.

(sgd) ATTY. SABRE M. AMAL

SHAN Law Firm, Suite 89, Kimsan Bldg.,
Bonifacio Street, Tacurong City
PTR No. 1247838 1-20-2012 Tacurong City
IBP No. 911117 1-21-2012 Tacurong City
Roll No. 89994
MCLE Ex. No. 111-000748 1-13-2012
 EXPLANATION

In compliance with Section 11, Rule 13 of the Revised Rules of Court,

personal service of copy of Trial Memorandum could not be effected except by
service through registered mail due to distance and personnel constraints.

Copy furnished. (Registered Mail)

Atty. Hamseya A. Bedial

Counsel for the Plaintiff