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Republic of the Philippines REGIONAL TRIAL COURT Fourth Judicial Region Branch No.

________ Bauang, La Union ---------- 0-----------

MILAGROS ANITA C. GUERRERO and DARREN E. GUERRERO, Plaintiffs, --versus-DANTE A. GUERRERO, SAN MIGUEL PROPERTIES, INC., REGINA G. ORTIZ and RICHARD C. CORIA, Defendants x------------------------------------x PLAINTIFFS MEMORANDUM Plaintiffs, through counses and to the Honorable Court, respectfully submits their MEMORANDUM in compliance with the Order of the Honorable Court, dated September 30, 2013, which the undersigned counsel receive on October 8, 2013. I. Plaintiff Milagros Anita C. Guerrero was married to the defendant Dante A. Guerrero on February 14, 2001 . Plaintiff Darren E. Guerrero was the acknowledged son of defendant Dante A. Guerrero. That in 2004, the defendant Dante A. Guerrero acquired from the defendant San Miguel Properties, Inc. a residential house and lot ( Subject Property) for a consideration of One Million One Hundred Sixty Nine Thousand Six Hundred Sixteen Pesos ( PhP 1,169,616.00) payable in installments for five (5) years through a Contract to Sell without the knowledge of the Plaintiff Milagros Anita C. Guerrero. Sometime in 2008, upon learning that defendant Dante A. Guerrero acquired the subject property the plaintiff Milagros Anita C. Guerrero confronted defendant Dante A. Guerrero. Thus, through a request letter addressed to the defendant San Miguel Properties, Inc. included the plaintiffs in the documents of the property. That sometime in 2010, defendant San Miguel Properties, Inc. informed the plaintiff Milagros Anita G. Calica, that the account of defendant Dante A. Guerrero was delinquent; the plaintiff Milagros Anita G. Calica showed her willingness to pay and deposited the payment for the installments for the months of May and June 2010 amounting to Fifty Five Thousand Pesos (PhP 55,000.00) in the bank account of the defendant San Miguel Properties, Inc. upon the latters instructions. However, plaintiffs discovered that the subject property was assigned by the defendant Dante A. Guerrero to the defendants Regina G. Ortiz and Richard C. Coria with the conformity of defendant San Miguel Properties Inc on June 2010. CIVIL CASE No.________ For DECLARATION OF NULLITY OF THE DEED OF ASSIGNMENT, SPECIFIC PERFORMANCE AND DAMAGES

II. ISSUES 1. Whether or not the Deed of Assignment executed in favor of the defendants Regina G. Ortiz and Richard A. Coria with the conformity of of the defendant San Miguel Properties, Inc. involving subject property valid. 2. Whether or not the defendants are liable for damages. III. REASONS AS WELL AS THE LAW AND JURISPUDENCE TO PROVE THAT JUDGEMENT SHOULD BE RENDERED IN FAVOR OF THE PLAINTIFFS AND AGAINST THE DEFENDANTS

It is the position of the Plaintiffs that the Honorable Court should render a decision in the above case in favor of the Plaintiffs and against th defendants for the following reasons: The following provisions of the New Civil Code are applicable in this instant case, as follows: Article 1318 provides : There is no contract unless the following requisites concur:(1) Consent of the contracting parties;(2) Object certain which is the subject matter of the contract; and(3) Cause of the obligation which is established. Article 96 of the Family Code provides: The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other validity. spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. The presence of the consent of a party to a contract is an essential element for its validity. In the case of alienation and encumbrance of properties part of the absolute community of the spouses it is an indispensable requirement that the consent of both spouses must be present. Hence, in Spouses Guiang v. Court of Appeals, G.R. No. 125172, June 26, 1998 , the Court held that the sale of a conjugal property requires the consent of both the husband and the wife. The absence of the consent of one renders the sale null and void, while the vitiation thereof makes it merely voidable. Only in the latter case can ratification cure the defect.

It is noteworthy to consider the letter sent by defendant Dante A. Guerrero requesting the inclusion of Milagros Anita C. Guerrero and Darren E. Guerrero in the documents of the subject property (Exhibit E). Thus, this serves as a notice to the defendant San Miguel Properties, Inc. that consent of the plaintiffs is necessarily be obtained before the subject property can be disposed. The payments made by plaintiff Milagros Anita C. Guerrero through deposit slips ( Exhibit F) negates her participation and consent in the execution of the Deed of Assignment favor defendants Regina G. Ortiz and Richard A. Coria. Further, her payment made in June 15, 2010 coincides with the date of the execution of the Deed of Assignment thus, it is a strong indicia of her non participation and non consent in its execution. Defendants Regina G. Ortiz and Richard A. Coria invoke that they are assignors in good faith. However, evidence shows that the deed was executed without the presence and consent of the plaintiffs making them aware of the alleged forgery of the signature of the plaintiffs. Hence, negates their claim of good faith. In Emas v. Zuzuarregui, G.R. No. L-29937 , July 12, 1929 it was held that a person cannot claim the rights of an innocent purchaser who wilfully closes his eyes to facts which would be sufficient to arouse the suspicion of a reasonable person; and knowledge of what might have revealed by proper inquiry is imputable to the purchaser. The plaintiffs alleged that their signature in the Deed of Assignment purportedly executed by them and defendant Dante A. Guerrero in favor of defendants Regina G. Ortiz and Richard A. Coria. Basic is the rule of evidence that when the subject of inquiry is the contents of a document, no evidence is admissible other than the original document itself except in the instances mentioned in Section 3, Rule 130 of the Revised Rules of Court. Mere photocopies of documents are inadmissible pursuant to the best evidence rule. This is especially true when the issue is that of forgery. The court held in Heirs of Severa P. Gregorio v. Court of Appeals, 360 Phil. 753, 763 (1998) that as a rule, forgery cannot be presumed and must be proved by clear, positive and convincing evidence and the burden of proof lies on the party alleging forgery. The best evidence of a forged signature in an instrument is the instrument itself reflecting the alleged forged signature. The fact of forgery can only be established by a comparison between the alleged forged signature and the authentic and genuine signature of the person whose signature is theorized upon to have been forged. Without the original document containing the alleged forged signature, one cannot make a definitive comparison which would establish forgery. A comparison based on a mere xerox copy or reproduction of the document under controversy cannot produce reliable results. The plaintiffs presented the Deed of Assignment and testimonies of witnesses to prove the genuineness and authenticity of the signatures of the plaintiffs. Likewise, presented their specimen signatures for the Court to compare with the signatures appearing on the Deed of Assignment. After careful perusal of the Court, the signatures have substantial difference. Under Rule 132, Section 22 of the Rules of Court, the genuineness of handwriting may be proved in the following manner: (1) by any witness who believes it to be the handwriting of such person because he has seen the person write; or he has seen writing purporting to be his upon which the witness has acted or been charged; (2) by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party, against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. As to the Deed of Assignment, in Vda. de Bernardo v. Restauro, A.C. No. 3849, 25 June 2003, 404 SCRA 599, 603, enunciates that it is well-settled that a duly notarized contract enjoys the prima facie presumption of authenticity and due execution as well as the full faith and credence attached to a public instrument. To overturn this legal presumption, evidence must be

clear, convincing and more than merely preponderant to establish that there was forgery that gave rise to a spurious contract. The plaintiffs produced a more preponderant evidence to overturn the presumption of authenticity and due execution as well as the full faith and credence attached to a public instrument. Article 19 of the Civil Code provides: Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Article 20 . Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.

IV. PRAYER WHEREFORE in view of the foregoing, it is prayed of the Honorable Court that judgment be rendered in favor of the plaintiffs and against the defendants. OTHER RELIEFS are likewise prayed for. San Fernando City, La Union for Bauang, La Union, October 21, 2013.

Atty. JOSEPH S. GACAYAN Attorney for the Plaintiffs Room 208, TRS Arcade, San Fernando City, La Union PTR No. 2082682;1/6/2012, San Fernando City, La Union Roll No. 2288088;1/6/2012, San Fernando City, La Union IBP No. 2285657;3/20/2012, San Fernando City, La Union MCLE Compliance No: VI-236581; 3/24/2013

Copy Furnished:

Atty. DENMARK M. RILLERA Counsel for Regina G. Ortiza and Richard A. Coria Unit 168, Lopez Bldg., Poblacion, Gen. Trias Cavite.

Atty. LEORAE D. VALMONTE Counsel for San Miguel Properties, Inc. Valmonte Law Office Ili Norte, San Juan, La Union

EXPLANATION Copies of this pleading were served upon the defendants counsels through registered mails, it being impractical to serve the same personally because of distance constraints.

Joseph S. Gacayan