Republic of the Philippines

Office of the President

HOUSING AND LAND USE REGULATORY BOARD
CENTRAL VISAYAS REGION
CEBU CITY

J. KRISTIL A. ABARRI
Complainant,

HLURB Case No: REM-CVR-081619-

-versus- 1108
For: Claim for Full Refund of Equity with
Damages
MONARES AND SONS REALTY
& DEVELOPMENT, INC. and/or
NUNILON MONARES
Respondents.

x-------------------------x

JUDICIAL AFFIDAVIT OF J. KRISTIL A. ABARRI

Questions were propounded by Atty. Dominique T. Elnar in English, a language

which the affiant fully understands, while answers were given/made by her in English.
The taking of this affidavit was done at Unit 9, Albulario Bldg. II, Gen. Maxilom Ave.,
Cebu City on November 21, 2019.

This Judicial Affidavit of J. Kristil A. Abarri is executed to serve as her direct

testimony in the instant case. This Judicial Affidavit is formally offered to prove: THAT:

1. Complainant knows Monares and Sons Realty and Development, Inc.

(herein referred to as “Monares”) because they are the developer of a
housing project known as “Villa Monares” at Brgy. Kalunasan, Cebu
City;

2. On December 2016, she entered into a Contract to Sell during pre-

selling period for the acquisition of a brand new 2-storey house named
APRIL which would have been constructed in a certain parcel of land
known as Lot No. 3 Block No. 4 with lot area of Sixty (60) Square Meters;

3. Complainant undertook to pay the equity within a period of 36 months

which she was able to faithfully comply with;

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 4. On the other hand, Monares obligated itself to immediately begin
construction of the chosen unit after receiving the 30th equity payment;

5. Complainant religiously paid her monthly obligation beginning on

January 2015;

6. She visited the construction site on May 2018 and she was devastated
to find out that no construction was commenced on the specified unit
she acquired;

7. She returned to the site on May 2019 wherein she saw that the
construction of her dream house had not yet begun;

8. She will attest that she sent formal demand letters to the developers to
secure their answer on the continued delay and thereafter sought the
assistance of this Office to have a formal conference with the Developer;

9. During the formal conference at this Office, the Developers merely

promised to commence the project, to no avail until this day;

10. This Judicial Affidavit will serve as her direct testimony and she will
identify documents requested to be marked as exhibits;

11. This is also offered to prove other matters relevant and pertinent to this
case.

I, J. KRISTIL A. ABARRI-MAGDADARO, of legal age, married, Filipino and a

resident of 1110 Ubos Pundok Basak Pardo, Cebu City, under oath, depose and say:

1) Q. Are you the same J. Kristil A. Abarri, the complainant in this case?
Ans. Yes.

2) Q. Why did you appear before this Office?

Ans. I want to file a case for refund against a developer named Monares and Sons
Realty and Development, Inc. (or “Monares” for brevity). I want to recover all my
equity payments amounting to Five Hundred Nine Thousand Five Hundred Pesos
(Php 509,500.00) plus damages, attorneys fees and cost of suit;

3) Q. How did you come to know this developer Monares?

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 Ans. I came to know this developer through my colleague from Wipro. She
introduced me to the development. She also brought me to the office of the
authorized broker of Monares. The broker company was called ROI (Realty
Options Inc.);

4) Q. What happened after that?

Ans. ROI presented to me the terms and breakdown of payment amount for the
acquisition of a 2-Storey house called April. The total purchase price of the house
and lot, as stated on the Contract, is Two Million Four Hundred Eighty Thousand
Pesos (Php 2, 480,000.00). ROI also showed the draft Contract to sell which
required a 20% equity payment for either 24 or 36 months term;

5) Q. What was your reaction?

Ans. I visited ROI on a later date then they accompanied me to the site of an ocular
visit. Thereafter, I got interested thus, I paid a reservation fee in the amount of Ten
Thousand Pesos (Php 10,000.00) on November 12, 2014;

6) Q. What happened after that?

Ans. I decided to push thru with the acquisition of a 2-Storey house with model
name April. This is specifically found on Lot. No. 3 Block No. 4 with a lot area of
Sixty (60) Square Meters. I signed the Contract to sell while the equity payment I
availed of was 30 months.

I availed of the 36-month equity payment term. I started the monthly equity
payment on December 12, 2014 in the amount of Thirteen Thousand Five Hundred
Pesos (Php 13,500.00);

7) Q. You mentioned the start of your equity payment, when did you sign the Contract
to Sell?
Ans. I was asked to sign it on December 15, 2015. A site development plan was
included in the CTS. It shows the actual location of the unit I was paying for (Lot.
No. 3 of Block No. 4)

NOTE: A faithful reproduction of the Contract to Sell dated December 15, 2015 is
requested to be marked as Exhibit “A”.

A faithful reproduction of the Site Development Plant is requested to be marked as

Exhibit “A-1”.

8) Q. Why did it take so long for the signing of the Contract to Sell?

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 Ans. ROI always reasoned out that it was not yet provided and prepared by
Monares.

9) Q. In reference to the Contract to Sell, what was your obligation?

Ans. I was obliged to pay Thirteen Thousand Five Hundred Pesos (Php 13,500.00)
every twentieth (20th) day of the Month for a period of 36 months. I religiously paid
my obligation. This represented the 20% equity payment. Thereafter, I will secure
PAG-IBIG financing for the balance using the house as collateral.

10) Q. For the part of the Developer, what was their undertaking?
Ans. Monares undertook to commence the construction of my house after I
complied and paid my 30th monthly installment payment.

This undertaking of developer is found on Section 4 of the Contract to Sell:

xxxxx
a. That on or at the Eighteenth (18th) month in the case of 24 months equity
settlement period as usually being the case at Phase 1-a units and thirtieth (30th)
month in the case of thirty Six (36) months equity settlement period provided there
is no delinquency in the monthly amortization payment of equity as herein above
provided, the owner/Developer shall have to commence the construction of the
Contracted Housing Unit under this agreement.

11) Q. When was your supposed 30th month of equity payment?

Ans. It was due on May 2017. I was able to pay it on May 24, 2017.

12) Q. Based on the Contract to Sell, what was the situation at the project site?
Ans. After paying my 30th month obligation, I made a follow-up with ROI on the
schedule of project commencement in preparation for my Pag-ibig loan application.
ROI told me that they will give information on the construction once it will start. But
I never got information from them.

13) Q. When did you complete your equity payments?

Ans. I completed my 36 equity payments November 20, 2017. I even gave an
overpayment of 1 month. My total payments amounted to Php 509,500.00. ROI
issued a statement of account on my payment and an Official Receipt.

NOTE: A faithful reproduction of the statement of account dated March 26, 2018
is requested to be marked as Exhibit “B”;
A faithful reproduction of the Official Receipt dated February 2, 2018 is requested
to be marked as Exhibit “C”;

14) Q. What happened to the construction schedule?

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 Ans. I asked for updates from ROI and Monare. I never received any feedback nor
update. Thus, I decided to visit the site sometime on February 2018;

15) Q. What did you observe at the site?

Ans. The construction of the house I paid for did not start. I spoke with an Engineer
at the site. He reasoned out that they were still working on the road construction.

16) Q. What else happened?

Ans. I came back to the site on March 23, 2018 and I took pictures of the actual
area of the property I bought.

I also spoke to Nunilon Monares at their office. He told me that the construction will
start April 2018.

NOTE: A copy of the pictures taken on March 23, 2018 at the site showing the
specified lot acquired by the Plaintiff is requested to be marked as Exhibit “D”;

17) Q. What happened on April 2018?

Ans. Construction still did not start by the end of April 2018. I visited the site again
the following month, May 2018, but still there was no construction at all.

18) Q. What did you do thereafter?

Ans. I sought the assistance of a lawyer to send formal demand letter to the
Developer Company (Monares) in order to seek a full refund of my equity payment
or be able to get an answer as to the construction commencement date.

My lawyer sent a demand letter on May 21, 2018.

NOTE: A faithful reproduction of the Demand Letter for Full Refund dated May 21,
2018 is attached and requested to be marked as Exhibit “E”;

19) Q. What was their response, if any?

Ans. My lawyer and I did not receive any response. So, we were prompted to seek
the assistance of HLURB (Housing and Land Use Regulatory Board) for a formal
conference thru a letter dated May 23, 2018 which was submitted to the office of
HLURB on June 1, 2018.

NOTE: A faithful reproduction of the Request for Assistance sent to HLURB dated
May 23, 2018 is attached and requested to be marked as Exhibit “F”;

20) Q. What happened after sending a letter request for assistance to HLURB?
Ans. We received a formal invitation from HLURB on June 25, 2018 inviting both
parties for a face to face conference on June 29, 2018.

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 NOTE: A faithful reproduction of the Invitation for Conference dated June 22, 2018
is attached and requested to be marked as Exhibit “G”;

21) Q. What happened during the conference?

Ans. Monares insisted that we interpreted the Contract To Sell incorrectly, thus,
they are not yet in default. They further promised to issue a legal opinion with
regard their defense.

22) Q. What was the gist of their defense?

Ans. Based on the legal opinion dated July 9, 2018, the commencement of
construction should be reckoned from the date of the contract to sell and not from
the date of full payment of the equity.

Their second contention stated that the construction of my unit shall be dependent
upon the adjacent units within my cluster. These interpretations are absurd and
unfair.

NOTE: A faithful reproduction of the Legal Opinion for Defendant Monares’ counsel
dated July 9, 2018 is attached and requested to be marked as Exhibit “H”;

23) Q. How did the office resolve the matter?

Ans. There was no settlement. I was advised to file a formal complaint. Thus, this
action.

24) Q. What are you asking from HLURB?

Ans. I would like to pray the following reliefs from HLURB:

1) Order the respondent to pay the amount of Five Hundred Nine Thousand
Five Hundred Pesos (php 509,500.00) as full refund of my equity payments;
2) Order the respondent to pay the amount of One Hundred Thousand Pesos
(Php 100,000.00) as moral and exemplary damages;
3) Order the respondent to pay Thirty Thousand Pesos as Attorney’s Fees (Php
30,000.00)
4) Order the respondent to pay the cost of suit;

25) Q. What else do you want to say?

Ans. Nothing more.

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 IN WITNESS WHEREOF, I have hereunto set my hand at Cebu City,
Philippines, this day of __________________.

J KRISTIL A. ABARRI
Affiant

SUBSCRIBED AND SWORN to before me at Cebu City, Philippines, this day

of __________________, affiant exhibiting to me her Driver’s License with No. G01-
17-021329, issued by LTO Cebu City and valid until 1-26-2022. I hereby certify that I
have examined the affiant; and that I am satisfied that she fully understood her affidavit
and that he freely and voluntarily executed the same.

Doc. No. ____

Page No. ____
Book No. ____
Series of 2019.

ATTESTATION

I, DOMINIQUE T. ELNAR, under oath, depose and say:

1. I was the lawyer who conducted/supervised the affiant in the execution of this
Judicial Affidavit;

2. I faithfully recorded or caused to be recorded the questions asked and the

corresponding answers the she gave;

3. Neither I nor anyone present coached him with his answer;

IN WITNESS WHEREOF, I have hereunto set my hand at the City of Cebu,

Philippines this ___ day of ___________.

DOMINIQUE T. ELNAR
Affiant

SUBSCRIBED AND SWORN to before me at the City of Cebu, Philippines this

day of _____________. Affiant is personally known to me being an Office Client.

Doc. No. ____

Page No. ____
Book No. ____
Series of 2019.

7
Republic of the Philippines)
Cebu City )S.s.

VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING

J KRISTIL A. ABARRI-MAGDADARO, legal age, married, Filipino and a

resident of 13-561 Gemelina St., Purok Kawayan, Tayud, Lilo-An, Cebu under oath,
depose and say:

1. That I am the Complainant of the above-stated case;

2. That I have caused the preparation of this Position Paper;

3. That I have read the statements/contents thereof and the same are true
and correct to my own personal knowledge and/or based on authentic
documents;

4. That I further certify that I have not commenced any action or filed any
claim, involving the same issues, nor is there any case that is pending
at any stage of the proceedings before any court, quasi-judicial agency
or tribunal;

5. That should I receive any information to the contrary, I undertake to

inform this Honorable Court within five (5) days therefrom.

J KRISTIL A. ABARRI-MAGDADARO
Drivers License No. G01-17-021329
Issued by LTO Cebu City; valid until 1-26-2022

SUBSCRIBED AND SWORN to before me at the City of Cebu, Philippines, this

day of ____________, affiants exhibiting to me his government issued proof of
identification as shown above.

Doc. No. ____

Page No. ____
Book No. ____
Series of 2019.