Republic of the Philippines

7TH Judicial Region

REGIONAL TRIAL COURT
Branch 5, Cebu City

NAPOLEON VILLAROJO, ET. AL.

Plaintiffs,
-versus- CIVIL CASE No. CEB-36793
For: Annulment of Mortgage, etc.

JEE FINANCE COMPANY,

Defendants.
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MOTION FOR RECONSIDERATION

COMES NOW Plaintiffs, through counsel, unto this Honorable

Court respectfully move for reconsideration of its Order dated
July 2, 2018 and states:

STATEMENT OF MATERIAL DATES

Plaintiffs received the Order dated July 2, 2018 (The now

“assailed Order” for brevity) on September 6, 2018. Under the
Rules, they have fifteen (15) days to move for its
reconsideration. Thus, the filing of this motion today, September
21, 2018, is still within the reglementary period fixed by the Rules.

STATEMENT OF THE CASE

The assailed Order resolves the Motion to Hear Affirmative

Defense filed by the Defendant J.E. Finance Corporation,
granting the affirmative defenses filed by defendant on the
grounds of res judicata and violation of certification against
non-forum shopping. The dispositive portion of the assailed
Order reads:

“WHEREFORE, premises considered, the instant case is

hereby DISMISSED on the grounds of res judicata and violation
of the rule on certification against forum shopping.

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 Accordingly, the plaintiff’s application for injunction is
hereby rendered moot and academic. The hearing in relation
thereto set on November 18, 2018 is hereby cancelled.

Notify parties’ counsels of this order.

SO ORDERED.”1

A copy of the assailed Order is attached herein as

ANNEX “A” and is made an integral part hereof.

With all due respect to this Honorable Court, Plaintiffs beg to

disagree with the assailed Order and now move for its
reconsideration on the following grounds:

1. There is no res judicata to speak of as there

can be no identity of parties between
Spouses Fortunato and Luzviminda Villarojo
and the children in Civil Case No. CEB-29736
and the present action.

2. The Deed of Real Estate Mortgage sought to

be annulled is void ab initio as it violates
Article 158 of the New Family Code.

3. There is no violation against forum shopping in

committed by the Plaintiff’s in the present
action.

DISCUSSION/ARGUMENT

There is no res judicata to speak of

as there can be no identity of
parties between Spouses Fortunato
and Luzviminda Villarojo and the
children in Civil Case No. CEB-
29736 and the present action.

Res judicata literally means a matter adjudged, judicially

acted upon or decided, or settled by judgment.15 It provides
that a final judgment on the merits rendered by a court of
competent jurisdiction is conclusive as to the rights of the
parties and their privies; and constitutes an absolute bar to

1
Assailed Order dated July 2, 2018, p. 4

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subsequent actions involving the same claim, demand or
cause of action.2

The following are the requisites of res judicata: (1) the

former judgment must be final; (2) the court that rendered it
had jurisdiction over the subject matter and the parties; (3) it is
a judgment on the merits; and (4) there is — between the first
and the second actions — an identity of parties, subject matter
and cause of action.3

Plaintiffs are aware of these requisites. However, there is

no res judicata to speak of in this case.

There is no dispute that there was already a final

judgment on a previous case and that the court which
approved the Compromise Agreement has jurisdiction over the
subject matter and parties. The compromise agreement can
be a judgment on the merits of the case. However, there is no
identity of parties, subject matter and causes of action.

In Civil Case No. CEB-29736, the parties were Spouses

Fortunato and Luzviminda Villarojo and J.E. Finance
Corporation. This case is between Napoleon Villarojo,
Ferdinand Villarojo, ans Lauro Villarojo and Jee Finance
Corporation. There can be no substantial commonality of
interest between Spouses Fortunato and Luzviminda Villarojo
and the children because there is a legal mandate that the
written consent must be given by owner or owners, his spouse
and a majority of the beneficiaries of legal age. Thus, even if
the father and the mother had given their consent to the
mortgage contract, when all of the Plaintiffs herein have not
given their consent thereto, then there is a violation of the
substantive rights of the Plaintiffs.

Res Judicata is not applicable when there is an express

provision of law that is not complied with.

Had the law envisioned that only the head of the family’s
consent is needed for the real estate mortgage’s validity, then
the law should not have mentioned “his spouse.” Had the law
2
Republic of the Philippines v. Court of Appeals, 324 SCRA 560, February 3, 2000; Firestone Ceramics, Inc.
v. Court of Appeals, 313 SCRA 522, September 2, 1999; Lee Bun Ting v. Aligaen, 76 SCRA 416, April 22,
1977; Philippine National Bank v. Barretto, 52 Phil. 818, February 21, 1929.
3
Quezon Province v. Marte, 368 SCRA 145, October 23, 2001; Avisado v. Rumbaua, 354 SCRA 245, March
12, 2001; Vda. de Salanga v. Alagar, 335 SCRA 728, July 14, 2000; Siapian v. Court of Appeals, 327 SCRA 11,
March 1, 2000; Ocampo v. Buenaventura, 154 Phil. 253, January 24, 1974.

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envisioned that only the parent’s consents are needed for a
real estate mortgage to be valid, then it should not have
mentioned the phrase “a majority of the beneficiaries of legal
age.”

The law requires that the father, his spouse and a majority
of the beneficiaries of legal must give their consent.
Furthermore, the law speaks only of “beneficiaries of legal age”
because minors cannot give their consent to a written
contract.

There would have been commonality of interest if the

plaintiffs were all minors on February 19, 2002. However, all of
the plaintiffs’ herein were already of legal age when the
alleged real estate mortgage was secured by the parents
alone on February 19, 2002.

To interpret otherwise would render nugatory the

substantive rights of the legal beneficiaries of legal age who
are also ought to be protected by law.

The Deed of Real Estate Mortgage

sought to be annulled is void ab
initio as it violates Article 158 of
the New Family Code.

The New Family Code of the Philippines states that:

“Art. 158. The family home may be sold, alienated, donated,

assigned or encumbered by the owner or owners thereof with
the written consent of the person constituting the same,
the latter's spouse, and a majority of the beneficiaries of
legal age. In case of conflict, the court shall decide.”

The law is clear who are the legal beneficiaries as defined by

law:
Art. 154. The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who is

the head of a family; and
(2) Their parents, ascendants, descendants, brothers and
sisters, whether the relationship be legitimate or illegitimate,
who are living in the family home and who depend upon the
head of the family for legal support.

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Not even one of the Plaintiffs herein has given their own
consent as evidenced by the Deed of Real Estate Mortgage
dated February 19, 2002. A copy of the Deed of Real Estate
Mortgage is attached herein as ANNEX “B” and is made an
integral part hereof;

The Deed of Real Estate Mortgage violates the express

provision of Articles 158 and 154 of the New Family Code.
Plaintiff’s consent was not secured when the subject house and
lot of their parents were allegedly mortgaged by their parents
to defendant Jee Finance Corporation. It is very clear in the
four corners of deed of mortgage itself that the plaintiffs who
are all not able to give their consent;

Thus, the mortgage contract itself on the subject property

is a nullity as it was contracted by the parents alone, without
the consent of the majority of the legal beneficiaries of the
entire property as required by law.

A contract is void if one of the essential requisites of

contracts under Article 1318 of the New Civil Code is lacking.
Article 1318 provides:

Art. 1318. 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;

(3) Cause of the obligation which is established.

All these elements must be present to constitute a valid

contract. Consent is essential to the existence of a contract;
and where it is wanting, the contract is non-existent. However,
there is lack of consent from the legal beneficiaries of this case.

A void or inexistent contract has no force and effect from

the very beginning. And this rule applies to contracts that are
declared void by positive provision of law, as in the case of a
sale of conjugal property without the other spouse’s written
consent. A void contract is equivalent to nothing and is

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absolutely wanting in civil effects. It cannot be validated either
by ratification or prescription.

Defendant's move to foreclose the subject property by

virtue of a void Deed of Real Estate Mortgage is a clear
violation of the rights to herein Plaintiffs is working grave
injustice and causing damage to the latter.

The said Deed of Real Estate Mortgage is a clear void

contract. A void contract is equivalent to nothing and is
absolutely wanting in civil effects. Yet without an injunction
issued against it, this void contract can produce grave and
irreparable injury to the plaintiffs.

The rights of the plaintiffs sought to be protected here are

substantive rights based on the provisions of the New Family
Code.

There is no violation against forum

shopping in committed by the
Plaintiff’s in the present action.

With all due respect, the case of Ramirez v. Mar Fishing

Co., Inc. cited by the Honorable Court is erroneous. It speaks of
a labor case which was dismissed by the Court of Appeals due
failure to attach the Certification Against Non-Forum Shopping.
However, despite that failure, the High Court even gave the
case course by relaxing its own rules. Thus, the facts of the
case do not fall squarely on this case. Hence, not applicable.

Plaintiffs did not violate the rule against forum shopping in

filing the instant case. The rights of the plaintiffs are separate
and distinct as the rights of their parents. They are only
protecting their rights as conferred to them by law. Their rights
are separate and distinct as that of their parents.

As discussed above, there is no sharing of interest in this

case with that of their parents. The plaintiffs and the parents are
ought to give their consent to the mortgage contract.
However, only the parents give theirs. Plaintiffs did not as shown
in the Deed of Real Estate Mortgage.

Did Article 158 of the Civil Code proscribe the plaintiffs not
make a protest? The answer is no. Rather, the law requires them
to also give their own individual consent which is denied to

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them. Filing this case based on these rights is not forum
shopping. Plaintiffs are filing this case not based on the
capacity as successors-in-interest” of their parents but based
on their own capacity as “beneficiaries of legal age” under
Article 158 of the New Family Code.

PRAYER
WHEREFORE, premises considered, Plaintiffs pray unto this
Honorable Court TO RECONSIDER its ORDER dated July 2, 2018
and REVERSE the same. It is further prayed to REINSTATE the
present action.
Other just and equitable reliefs are likewise prayed for.
RESPECTFULLY SUBMITTED.
September 21, 2018. Cebu City, Philippines.

JAYSON G. REPASO
Roll No. 55100
PTR No.17524445; Cebu Province; issued on 12/13/17 (for 2018)
IBP Lifetime Member No. 1065300; Cebu Province Chapter; issued on 12/5/17
MCLE Compliance No. V-0013496, issued on 2.2.16
Email add: atty_jayson@yahoo.com

NOTICE OF HEARING

THE CLERK OF COURT

Regional Trial Court-Branch 5
Cebu City

ATTY. CENON A. JUMAO-AS, JR.

J.M. Del Mar, St., Apas
6000 Cebu City

Greetings: Please take notice that the foregoing Motion for

Reconsideration shall be submitted for the consideration and approval of
the Honorable Court on September 28 at 8:30 a.m.

J. G. Repaso

COPY FURNISHED:
ATTY. CENON A. JUMAO-AS, JR.
J.M. Del Mar, St., Apas
6000 Cebu City

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