Republic of the Philippines Office of the President HOUSING AND LAND USE REGULATORY BOARD EXPANDED NATIONAL CAPITAL REGION FIELD OFFICE 7 Floor, Sunnymede LT. Center, 1614 Quezon Avenue, Barangay South Triangle, Quezon City SPOUSES BRENN JOSEF S. VELILLA and ROAN P. VELILLA, Complainants, -versus- HLURB Case No. REM-032119-16932 EMPIRE EAST LAND HOLDINGS, INC., represented by its President, Atty. Anthony Charlemagne C. Yu and Senior Manager, Visitacion B. Domingo, Respondent. ennnnn=X POSITION PAPER Respondent EMPIRE EAST LAND HOLDINGS, INC. (“Empire East”), through counsel, respectfully states that: TIMELINESS 1. In the Order dated 09 September 2019, the parties in the instant case were directed to file their respective verified position papers and draft decisions within 15 days from receipt of said order. 2. Respondent received its copy of the order on 27 September 2019. Counting 15 days from 27 September 2019, Respondent had until 12 October 2019 to file its verified position paper and draft decision. With 12 October 2019 falling on a Saturday, Respondent has until the next working day, or 14 October 2019 to file its verified position paper and draft decision. 3. _ This Position Paper with Draft decision of Respondent is, thus, timely filed. STATEMENT OF FACTS 4. On 24 October 2008, Complainant Brenn Josef S. Velilla (‘Brenn”), as the sole buyer and, then, single, entered into a Contract to Buy and Sell with Respondent over a condominium unit at thelatter's the Cambridge Village project in Cainta, Rizal, more particularly described as Cluster 26, Unit 10-J (“Subject Property”). 5. Under the said contract, the purchase price for the Subject Property was P875,000.00 payable as follows: 5.1. P269,500.00 as downpayment (inclusive of the P10,000.00 reservation fee); and 5.2. P605,500.00, plus interest, under the special terms and conditions as specified in “Annex A” of the contract. 6. “Annex A” of the 2008 contract lists the amortization schedule for Complainant Brenn as follows: 6.1. P5,363.10 per month from 28 October 2008 to 28 September 2009; 6.2. P7,045.11 per month from 28 October 2009 to 28 September 2010; 6.3. P8,857.51 per month from 28 October 2010 to 28 September 2023; and 6.4. P14,849.55 lumpsum payment to be paid every 28 of September of 2008, 2009, 2010, 2011, 2012, 2013, 2014 and 2015. g. Even though the Subject Property was delivered to Complainant Brenn in August 2012, Complainant Brenn was supposed to complete the payment for the purchase price of the Subject Property on 2023. However, sometime in the latter part of 2012, and contrary to the agreed terms and schedule of payment in the 2008 contract, Complainant Brenn insisted to settle the balance through a bank loan. + attached herewith as Respondent's Annex “1” is the Contract to Buy and Sell dated 24 October 2008. ? Attached herewith as Respondent’s Annex “2” is the Acceptance Receipt Complainant Brenn, signed on 25 August 2012. 3 The Honorable Office should note that since August 2012, Complainant Brenn had already been in possession of the Subject Property. Even until the present, the Subject Property is stil with Complainant Brenn as Complainants’ address as provided in the complaint is the address of the Subject Property.10. Respondent accommodated Complainant Brenn and accepted the payment from the bank, which covered the balance of the purchase price for the Subject Property and the miscellaneous fees for the eventual transfer of title. In the billing for the miscellaneous fees, it was indicated that the said fees were “computed based on prevailing rates as of date and are subject to increase or decrease without prior notice depending on the mandate of the governing tax law.” 11. Sometime in August 2017, Respondent sent Complainant Brenn a billing for the deficient miscellaneous fees amounting to P12,180.00¢ In the said billing, the following were indicated: -Please provide us a Photocopy of Real . Property Tax Receipts and Original Copy of Tax Clearance for 2017 after payment to facilitate transfer of Title to your name. -Above fees where (sic) computed based on the prevailing rates as of date and a i married Complainant Roan P. submitted a copy of their marriage certificate and IDs of Complainant Roan, not until 14 January 2019.7 14. By 14 February 2019, Respondent had already prepared the Amended Contract to Buy and Sell and the Deed of Absolute Sale with Complainant Roan included as the spouse and co-buyer of Complainant Brenn, however Complainants adamantly refused to sign the said amended contract and only signed the Deed of Absolute Sale. By this time, Complainants have still yet to + Attached herewith as Respondent's Annex “3” is the Miscellaneous Fees billed to Complainant Bren. 5 attached herewith as Respondent's Annex “4” is the deficient Miscellaneous Fees billed to ‘Complainant Bren. See Complaint, Annex “D-2”. 7 Attached herewith as Respondent's Annex “5” is the email sent by Complainant Brenn on 14 January 2019 where he sent copies of their marriage certificate and Complainant Roan’s valid government issued IDs.complete the requirements for the transfer of title, i.e. submission of the original tax clearance for the current year. 15. It was only on 19 February 2019 that Complainants sent to Respondent the original tax clearance for 2019.8 STATEMENT OF THE CASE 16. One month after signing of the Deed of Absolute Sale and submitting the original tax clearance for 2019, or on 21 March 2019, Complainants filed the instant complaint for “ansound real estate practices, claims involving release and/or issuance of deed of absolute sale and condominium certificate of title and other claims (damages)” against Respondent. 17. Inthe complaint, Complainants claimed that Respondent delayed in the signing, processing and release of the deed of absolute sale and the condominium certificate of title. Complainants likewise alleged that miscellaneous fees billed by Respondent were “unknown charges” and were not mentioned in the Contract to Buy and Sell. Complainants further claimed for P10,219.00 deposit as Respondent allegedly failed to refund the same despite demand. Complainants prayed as follows: WHEREFORE, it is respectfully prayed unto this Honorable Office that judgment be rendered as follows: (2) Ordering respondent EMPIRE EAST LAND HOLDINGS, INC., represented by its President, Atty. Anthony Charlemagne C. Yu and Senior Manager, Visitacion B. Domingo, to cause the issuance of Deed of Absolute Sale and Condominium Certifcate (sic) of Title over the subject unit in favor of SPOUSES BRENN JOSEF S. VELILLA and ROAN P. VELILLA; (2) Ordering respondent EMPIRE EAST LAND HOLDINGS, INC., represented by its President, Atty. Anthony Charlemagne C. Yu and Senior Manager, Visitacion B. Domingo, to return the deposit paid by the complainant-spouses in the amount of Php 10,219.00, plus legal interest; (3) Ordering xespondent EMPIRE EAST LAND HOLDINGS, INC., represented by its President, Atty. Anthony Charlemagne C. Yu and Senior Manager, Visitacion B. Domingo, to pay, jointly and severally, the complainant-spouses the amount of Php ® attached herewith as Respondent’s Annex 6” is the email sent to Complainant Bren where was acknowledged that the original tax clearance for 2019 was received on 19 February 2019.50,000.00 as moral damages, = and Php30,000.00 as exemplary damages; and, (4) Ordering respondent EMPIRE EAST LAND HOLDINGS, INC., represented by its President, Anthony Charlemagne C. Yu and Senior Manager, Visitacion B. Domingo, to pay jointly and severally, the complainant- spouses attorney’s fees in the amount of Php 30,000.00 and the costs of suit. Other reliefs just and equitable are likewise prayed for. 18. On 20 May 2019, Respondent filed its Answer with Compulsoty Counterclaim and argued that, on a procedural matter, the complaint should be considered as not filed for Complainants’ counsel to comply with Rule 3, Sections 11(a)(4) and (a)(5) of the 2019 HLURB Rules of Procedure; that even assuming the above procedural lapse is disregarded, Complainants have no cause of action against Respondent; that the alleged delay in the signing of the deed of absolute sale cannot be attributed to Respondent, and, in any case, the deed of absolute sale had already been signed Complainants prior to the Gling of the 2 WHEREFORE, it is most respectfully prayed that a decision be rendered as follows: 1. Dismissing the complaint for lack of merit. 2. And on the counterclaim - a. Ordering Complainants to pay Respondent 200,000.00 as and for attorney’s fees; b. Ordering Complainants to pay Respondent 100,000.00 as and for exemplary damages; and c. Ordering Complainants to pay Respondent for the costs of suit and litigation expenses. Other reliefs just and equitable under the premises are likewise prayed for.19. In the mandatory conferences, Complainants were advised by Respondent to let the process of transferring the title with the Bureau of Internal Revenue (“BIR”) and Registry of Deeds (“RD”) to run its course and to wait for the issuance of the transferred title considering that they have only signed the Deed of Absolute Sale on February 2019. However, Complainants insisted on the case and the parties failed to reach an agreement to settle amicably. 20. On 27 September 2019, Respondent received the Order dated 09 September 2019 where it was directed to file its verified position paper and draft decision within 15 days from receipt. 21. Hence, this verified position paper with draft decision by Respondent. ISSUES I. WHETHER OR NOT THE COMPLAINT IS CONSIDERED AS NOT FILED AND BE DISMISSED. I. WHETHER OR NOT COMPLAINANT CAN ATTRIBUTE DELAY UNTO RESPONDENT AND COMPEL IT TO ISSUE THE DEED OF ABSOLUTE SALE AND CONDOMINIUM CERTIFICATE OF TITLE UNDER COMPLAINANTS’ NAMES. Il. WHETHER OR NOT THE MISCELLANEOUS FEES ARE PROVIDED FOR IN THE CONTRACT. Iv. WHETHER OR NOT COMPLAINANTS ARE ENTITLED TO THE REFUND OF P10,219.00 METER & BILL DEPOSIT. Vv. WHETHER OR NOT COMPLAINANTS ARE ENTITLED TO THE DAMAGES PRAYED FOR. VI. ‘WHETHER OR NOT RESPONDENT IS ENTITLED TO ITS COUNTERCLAIMS. ARGUMENTSI. UNDER RULE 3, SECTION 11 OF THE 2019 HLURB RULES OF PROCEDURE, THE COMPLAINT SHOULD BE CONSIDERED AS NOT FILED, AND THEREFORE BE DISMISSED. Il. NO DELAY MAY BE ATTRIBUTED TO RESPONDENT. HAVING SIGNED THE DEED OF ABSOLUTE SALE ONLY ON FEBRUARY 2019 PRIOR TO THE FILING OF THE COMPLAINT AND THE EVENTUAL ISSUANCE OF THE CONDOMINIUM CERTIFICATE OF TITLE UNDER COMPLAINANTS’ NAMES, THE ISSUE ON THE TITLE IS ALREADY MOOT AND ACADEMIC. Il. THE MISCELLANEOUS FEES ARE WELL PROVIDED FOR IN THE CONTRACT. “ “ COUNTERCLAIMS. DIst I. UNDER RULE 3, SECTION 11 OF THE 2019 HLURB RULES OF PROCEDURE, THE COMPLAINT SHOULD BE CONSIDERED AS NOT FILED, AND THEREFORE BE DISMISSED. 22. Rule 3, Sections 11(a)(4) and (a)(5) of the 2019 HLURB Rules of Procedure state: Rule 3 REAL PARTY-IN-INTEREST, COUNSELS AND REPRESENTATIVESemx Section 11. Appearance of Counsel or Representative. - The appearance of counsel or representative is optional. (a) If a party is represented by counsel, the lawyer must indicate the following in the pleadings: xxx (4) IBP Official Receipt Number or IBP Lifetime Membership Number, including the date and place of issue; and (5) Mandatory Continuing Legal Education Compliance or Exemption Certificate Number and the date of issue. xxx 23. In the signature page of the complaint, Complainants’ counsel merely indicated the following: 27. The said rules of procedure should not be belittled as the same rules provide for the consequences for failure to comply with the same. Under the same section of Rule 3 of.the 2019 HLURB Rules, it was stated that “Failure of the party to comply with the requirements herein shall render the pleading as not filed.” 28. As such, the instant complaint should be considered as not filed. I. NO DELAY MAY BE ATTRIBUTED TO RESPONDENT. HAVING SIGNED THE DEED OF ABSOLUTE SALE ONLY ON FEBRUARY 2019 PRIOR TO THE FILING OF THE COMPLAINT AND THE EVENTUAL ISSUANCE OF THE CONDOMINIUM CERTIFICATE OF TITLEUNDER COMPLAINANTS’ NAMES, THE ISSUE ON THE TITLE IS ALREADY MOOT AND ACADEMIC. Even assuming the above procedural lapse is disregarded, Complainants have no cause of action against Respondent. 29. The instant complaint may be summarized into three claims, i.e. the alleged delay in the “signing, processing, and release of the Deed of Absolute Sale (DAS) and the Condominium Certificate of Title,” the alleged unsound real estate business practice on the miscellaneous fees/charges billed despite being allegedly never mentioned in the “Contract to Buy and Sell between the complainants-spouses and the Respondent,” and for the refund of the P10,219.00 deposit made by Complainants. 30. It is Respondent’s position that such allegations are baseless and unfounded. 31. A cause of action is defined as the act or omission by which a party violates a right of another.s For there to have a cause of on, the following elements must be present: (a) A right in favor of the tiff by whats means and under whatever law it arises or is ezested: (5) An obligation on the part of the named defendant to tespect or mot to violate such right: and (c) Act or omission on the pact of sack defendant im violation of the right of the plaintiff or constituting 2 breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages or other appropriate relief. 32. The complaint should be dismissed as Complainants have no cause of action against Respondent. As will be discussed below, the alleged delay in the signing of the Deed of Absolute Sale cannot be attributed to Respondent, the charging of the miscellaneous fees is well provided in the contract, and the P10,219.00 should not be refunded in the first place. With these, the first element of having a cause of action is already missing. 33. At best, the allegations in the complaint are mere afterthoughts of Complainant to extort from Respondent. 34. Respondent discusses as follows: ° Heirs of Abadilla v. Gallarosa (G.R. No, 149041, 12 July 2006). 2 Willard 8. Riano, Civil Procedure (A Restatement for the Bar) (Manila, Philippines: Rex Bookstore, Inc., 2009), 83. 9The alleged delay in the signing of the Deed of Absolute sale cannot be attributed to Respondent. In any case, the Deed of Absolute Sale had already been signed by Complainants prior to the filing of the instant case, rendering the issue moot and academic. 35. Inan email dated 25 February 2019 (See Annex 'H” of the compiaint), Complainant Bren impressed upon Respondent that the Deed of Absolute Sale should have been done “11 years ago.” 11 years prior to February 2019 would have been 2008, a time when Complainant Brenn had not even completely paid the purchase price for the Subject Property. Obviously, Complainants do not have a ‘ear grasp as to how transferring of title is done. 36. Complainants are trying to pass the blame to Respondent for the alleged delay in the signing of the Deed of Absolute Sale, however, as narrated in the counterstatement of facts above, the alleged delay cannot be attributed to Respondent. 37. The 2008 contract Complainant Brenn signed provides: BUYER of the CCT covering the Subject Unit upon the happening of all of the following condition: (.1) Full payment of the entire Consideration, as well as interests and penalties and other expenses due thereon, if any; (b.2) Performance and compliance by BUYER of all his obligations under this Contract; and, (b.3) Completion of all governmental legal_or contractual requirements, if any, for the issuance of the CCT. (c) The Buyer shall be exclusively liable for all taxes, fees, charges and assessments, other than income tax which shall be for the account of the SELLER, which are imposed or to be imposed by the national or local government and other relevant authorities on the sale of the Subject Property, on the preparation, execution and registration of the relevant contracts, documents and papers for the 10purpose, on the transfer of title and tax Pureeration over the Subject Property f° ceclSUYER’s name, and on such processes #8 many (sic) be necessary OF incidental to the foregoing. (underscoring and emphasis supplied) 38. In 2012, Complainants paid the balance of the purchase price for the Subject Property through a bank Toan. It may be said that Pomplainants complied with “(b.a)” in 2012, but have yet to comply with “(b.2)” and “(b.3).” 39. “(b.2)” includes Complainants’ obligation to pay for the miscellaneous fees (Item gic] of the contract). Complainants completed payment of the miscellaneous fees, including the adjustment, only on February 2018. " 40. “(b.3)” jncludes the submission of the documentary requirements for the correct civil status of the buyer and the submission of the original tax clearance. Complainants submitted a copy of their marriage certificate only on 14 January 2019, and submitted the original tax clearance for 2019 on 19 February 2019. 41. Without these, the process for the transferring of title could not commence. Even if Respondent had Complainants sign the Deed of Absolute Sale early on, Respondent's hands would still be tied due to Complainants’ non-submission of the requirements and non- completion of obligations as provided in the contract. 42. In any case, Complainants cannot cry foul beginning 21 March 2019 (the date of filing of the instant complaint) when they have already signed the Deed of Absolute Sale on February 2019. Any alleged delay on the signing and preparation of the Deed of Absolute Sale is already moot and academic. Having signed the Deed of ‘Absolute Sale only on February 2019, Complainant cannot allege that there was a delay in the processing and release of the CCT. 43. Elementary in the process of transferring titles is the execution of the Deed of Absolute Sale. . Complainant cannot allege that the signing of the Deed of ‘Absolute Sale should have been done 11 years ago or in 2008. AS discussed above, Complainants completed all the requirements 1needed for the signing of the Deed of Absolute Sale only on February 2019. 45. Having only signed the Deed. of Absolute sale on February 2019, Complainant cannot allege any delay on process of transferring the CCT under their names on the part of Respondent. 46. In fact, after having signed the Deed of Absolute Sale and after having submitted the original tax clearance for 2019 on February 2019, Respondent was then in the process of transferring the CCT under Complainants’ names. Complainant cannot expect that this will be done immediately. Moreover, the processing time of the BIR for the issuance of the Certificate Authorizing Registration and the processing time of the concerned RD for the actual transfer of CCT to Complainants’ names are beyond Respondent’s control. From then on, Complainants would have to wait until these processes of the said government agencies are completed. After which, Complainants (or their bank, should it require) will simply receive the transferred CCT from Respondent. 47. Having signed the Deed of Absolute Sale only on 14 February 2019 and having submitted the original tax clearance for 2019 on 19 February 2019, Complainants cannot expect that the title will be transferred under their names immediately. Complainant’s filing of the instant complaint a month after or on 21 March 2019 alleging delay in the processing of the transfer of title should be given no consideration. The CCT over the Subject Property had already been transferred under Complainants’ names. 48. Prior to the filing of the instant complaint, Respondent had already been in the process of transferring the CCT over the Subject Property in Complainants’ names. . In the mandatory conferences, Complainants were advised to wait for the processes of the BIR and the RD for the transfer of title. Complainants refused and insisted on the case. 50. However, with the RD’s eventual issuance of the CCT under Complainants’ names,» the issues on the instant case should be rendered moot and academic. il. Se T attached herewith as Respondent's Annex “7” is the CCT over the Subject Property under Complainants’ names. 12THE MISCELLANEOUS FEES ARE WELL PROVIDED FOR IN THE CONTRACT. 51. Complainants cannot accuse Respondent of committing unsound real estate pusiness practice. As earlier mentioned, even though Complainants paid the balance of the purchase price through a bank loan in 2012, jt was only on February 2019 when Complainants completed the requirements for the transfer of title. 52. Moreover, Complainants cannot claim that the “miscellaneous fees/charges” are “unknown charges” and were never mentioned in the contract. As earlier quoted, the miscellaneous fees ate well provided in the contract. Item 3(c) of the contract states: (c) The Buyer shall be exclusively_liable tor all taxes, fees, charges and ser Ggomenta, other than income tax which Teil be for the account of the SELLER, Shich are imposed or to be imposed by the weienal or local government _and __other ses ecant authorities on the sale of the ensest Property, on the preparation eoution and registration of the relevant execution and registration of 7s 27 tacts, documents and papers for the oe rose, on the transfer of title and tax Secrszation over the Subject Property te the BUYER’ s name, and on such processes 38 many (sic) be necessary OF incidental to the foregoing. (underscoring and emphasis supplied) 54. Being explicit in the contract, Complainants cannot allege that the miscellaneous fees are unknown to them. It should likewise be pointed out that Complainants already agreed and in fact paid the said fees, which was admitted in the complaint. For all intents and purposes, Complainants are estopped to deny that they are obliged to pay for the same. 55. More importantly, Complainants’ argument with reference to Section 25 of P.D. 957 js misplaced. Examining the items of expenses imposed upon Complainants, it is evident that the said fees are related to the transfer of the title covering the Subject Property. The documentary stamp tax, transfer tax and registration fees are clearly for Complainants’ account. The same can be said of the notarial fee, as the document evidencing the purchase by and transfer of the property to the Complainants having to be notarized is ultimately for the benefit of the Complainants. The processing fees on the other hand are meant to cover the administrative expenses of the respondent in working for the transfer of the CCT for the Subject 13Property. This is likewise for the benefit of Complainants as they would no longer face the trouble of going through the entire process of dealing with various government agencies in having the title transferred. As to the real property taxes billed in the miscellaneous fees, these are the real property taxes advanced by Respondent, which should have been paid by Complainants for being in possession of the Subject Property as early as 2012. As to the meter and bill deposit, these are obviously for the account of Complainants as they will actually make use of these provisions in their possession and use of the Subject Property. 56. As such, and with these fees being reasonable and for Complainants’ benefit, Complainants cannot, therefore, allege that Respondent committed unsound real estate business practice. Iv. COMPLAINANTS ARE NOT ENTITLED TO THE REFUND OF THE P10,219.00 METER & BILL DEPOSIT. 57. In paragraph 21 of the complaint, Complainants merely stated that “Respondent is also liable for the deposit in the amount of Php 10,219.,00 as it failed to refund the said amount despite repeated demands.” 58. As to the reason why this amount should be refunded, Complainants are silent. It appears that simply because they demanded for the return of the P10,219.00, it should be refunded to them. 59. There is utterly no basis for Complainants’ claim of refund of the P10,219.00. As discussed above, these are obviously for the account of Complainants as they will actually make use of these provisions in their possession and use of the Subject Property. In fact, Complainants have been actually using the Subject Property and had been in possession of the same since 2012. Vv. COMPLAINANTS ARE NOT ENTITLED TO THE DAMAGES PRAYED FOR. 60. With Complainants’ false expectations they set for themselves and lack of understanding on the process of transferring titles, Complainants merely assumed that Respondent was in breach of its contractual obligations and acted in bad faith. 61. No bad faith may be imputed to Respondent for merely adhering to the conditions precedent set in the contract and the 14requirements required by the relevant government agencies for the transfer of title. As exhaustively discussed above, no delay may be imputed on Respondent and all the fees charged to Complainants are above-board. In fact, the complaint even failed to show or present how Respondent acted in bad faith. Mere assumptions and allegations do not suffice, and complaining or filing a complaint does not make a complainant right. 62. As for moral damages, Complainants were not able to prove their entitlement for the same in the complaint. Complainants vine not able to show how they suffered physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury.2 How can Complainants suffer these and be entitled to moral damages when the delay for the signing of the Deed of Absolute Sale was caused by them? 63. Award for exemplary damages is likewise not in order. No ad faith may be imputed against Respondent as it did not act ina wanton, fraudulent, reckless or malevolent manner. The Supreme Court further explains in Francisco v. Ferrer (G.R. No. 142029, 28 February 2001): rant the award wrongful act bad faith, and an @ be allowed if the @ wanton, fraudulent, re 64. Moreover, without being entitled moral, temperate or compensatory damages, Complainants cannot be entitled to exemplary damages. “Article 2234 of the Civil Code even provides: Art. 2234. While the amount of the exemplary damages need not be proved, the Gintiff must show that he is entitled to plaintiff must show that_he_is_entit === coral, temperate or compensatory damages before the court may consider the question 2e whether or not exemplary damages should be awarded. x x x (Underscoring and emphasis supplied) 65. The award for attorney’s fees have likewise no basis. Apart from being unsubstantiated, none of the instances listed in Article _ 2 article 2217 of the Civil Code. 1 article 2232 of the Civil Code states, “in contracts and quasi-contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, oF malevolent manner.” 152208 of the Civil Code are present. Any damages or costs claimed should be borne by Complainants alone. VI. ‘WHETHER OR NOT RESPONDENT IS ENTITLED TO ITS COUNTERCLAIMS. 66. In fact, Complainants were the ones who acted in bad faith. Knowing fully well that they submitted late the requirements for the transfer of title and only having signed the Deed of Absolute Sale on February 2019, Complainants still decided to file a complaint on March 2019 to attribute delay unto Respondent. 67. Complainants were advised to wait for the issuance of the CCT as the processes of the BIR and RD are beyond Respondent’s control, yet Complainants refused and insisted on the case. True to Respondent's word, the transfer was indeed being processed the CCT ‘was eventually issued by the RD under Complainants’ names. 68. It was Complainants who caused the delay, and yet they are the ones impatient in the transfer of the title. 69. By reason of Complainants’ institution of this baseless and unfounded action, especially with engaging im Etigation om most and academic issues, Respondent was compelled tp inre the services of the undersigned commsel and imeurred expenses to defend SE Teptesett os Stee ood te JO. Assuch, im accordance with Article 2208 of the Gril Code, Complainants should be directed to pay Respondent's attorney's fees in an amount no less than P200,000.00, plus costs of suit. 71. Moreover, to deter the public from emulating Complainants and discourage the filing of baseless suits, Complainants must also be directed to pay Respondent exemplary damages in the amount of P100,000.00. PRAYER WHEREFORE, it is most respectfully prayed that a decision be rendered as follows: 1. Dismissing the complaint for lack of merit. 2. And on the counterclaim — a. Ordering Complainants to pay Respondent P200,000.00 as and for attorney’s fees; 16b. Ordering Complainants to pay Respondent P100,000.00 as and for exemplary damages; and c. Ordering Complainants to pay Respondent for the costs of suit and litigation expenses. Other reliefs just and equitable under the premises are likewise prayed for. Taguig City for Quezon City, 10 October 2019. EDANO SIOSON & ASSOCIATES Counsel for Respondent 12/F Alliance Global Tower, 36t Street corner 11 Avenue, Uptown Bonifacio, 1634 Taguig City Tel No. +6328678018 By: .OSHI R. KOTAKE IBP Life Member Roll No. 012466/0.R. No. 963723/14 February 2014/Pasig City PTR No. A-4252372/03 January 2019/Taguig City MCLE Compliance No. VI-0025015/12 April 2019, Roll of Attorneys No. 59790 COPY FURNISHED: SIMMONETTES. LIM Counsel for Complainants Unit 34, 3" flr. Vista Del Rey Apts., Diamond St. Umali Subdivision, Brgy. Batong Malake, Los Bafios, 4030 Laguna EXPLANATION: This Position Paper with Draft Decision is being filed with the Honorable Office and served to the above copy furnished via registered mail due to time constraints and lack of messengerial manpower to effect personal filing and service. HI &. KOTAKE a7)Republic of the Philippines Office of the President HOUSING AND LAND USE REGULATORY BOARD EXPANDED NATIONAL CAPITAL REGION FIELD OFFICE 7 Floor, Sunnymede LT. Center, 1614 Quezon Avenue, Barangay South Triangle, Quezon City SPOUSES BRENN JOSEF s. VELILLA and ROAN P. VELILLA, Complainants, -versus- HLURB Case No. REM-032119-16932 EMPIRE EAST LAND HOLDINGS, INC., represented by its President, Atty. Anthony Charlemagne C. Yu and Senior Manager, Visitacion B. Domingo, t Respondent. aX DRAFT DECISION Before this Office is a complaint filed by Spouses Brenn Josef S. Velilla and Roan P. Velilla against Respondent Empire East Land Holdings, Inc. for unsound real estate practices, claims involving release and/or issuance ‘of deed of absolute sale and condominium certificate of title and damages. In the complaint, Complainants alleged that on 24 October 2008, they entered into a contract to buy and sell with Respondent over a condominium unit in the Cambridge Village, particularly in its Cluster 26, Unit 10-J. Complainants further alleged that they had already fully paid the unit through a housing loan with BPI Family Savings Bank. On August 2017, Complainants received a notice of payment for miscellaneous charges, ‘and that the same had already been paid. On 14 February 2019, Complainants signed the Deed of ‘Absolute Sale and also sent the additional documentary requirements such as marriage certificate and tax clearance, yet Respondent could not provide a categorical response as to the release of the deed of absolute sale and the issuance of the CCT. Complainants likewise demanded for the refund of P10,219.00 for the meter and bill deposit, and accused respondent of billing unknown charges termed as miscellaneous fees/charges- Respondent, on the other hand, argued in its Answer with Compulsory Counterclaim that, on a procedural matter, the complaint should be considered as not filed for Complainants’ 1counsel to comply with Rule 3, Sections 11(a)(4) and (a)(5) of the 2019 HLURB Rules of Procedure; that even assuming the above procedural lapse js disregarded, Complainants have no cause of action against Respondent; that the alleged delay in the signing of the deed of absolute sale cannot be attributed to Respondent, and, in any case, the deed of absolute sale had already been signed by Complainants prior to the filing of the instant case, yendering the jssue moot and academic; that having signed the deed ‘of absolute sale only on February 2019, ‘Complainants cannot allege that there was delay in the processing and release ‘of the CCT; that the miscellaneous fees are well pro ided in the contract; that there is no basis for Complainants’ claim that the P10,219.00 Meter & Bill Deposit should be returned to them; that Complainants are not entitled to the damages prayed for; that there is no basis for Complainants’ claim that Respondent’s President and Senior Manager should be jointly and severally liable with it; that Respondent is entitled to its counterclaims. Without the parties reaching an agreement to settle, this Office terminated the mandatory conference and ordered to the parties to file their respective position papers and draft decisions. ‘The issues to be resolved are as follows: J. WHETHER OR NOT THE COMPLAINT IS CONSIDERED AS NOT FILED AND BE DISMISSED. I. WHETHER OR NOT COMPLAINANT CAN ATTRIBUTE DELAY UNTO RESPONDENT AND COMPEL IT TO ISSUE THE DEED OF ABSOLUTE SALE AND CONDOMINIUM CERTIFICATE OF TITLE UNDER COMPLAINANTS’ NAMES. Yl. WHETHER OR NOT THE MISCELLANEOUS FEES ARE PROVIDED FORIN THE CONTRACT. JV. WHETHER OR NOT COMPLAINANTS ARE ENTITLED TO THE REFUND OF P10,219.00 METER & BILL DEPOSIT. V. WHETHER OR NOT COMPLAINANTS ARE ENTITLED TO THE DAMAGES PRAYED FOR. VI. WHETHER OR NOT RESPONDENT IS ENTITLED TO ITs COUNTERCLAIMS. ‘As to the first issue, this Office rules that the complaint should pe considered as not filed, and therefore dismissed.Explicit in Rule 3, Section 11 of the 2019 HLURB Rules of Procedure that failure of the party to comply with the requirements stated therein shall render the pleading as not filed. Evidently, Rule 3, Sections 11(a)(4) and (a)(5) were not faithfully complied with. Said provisions state: Rule 3 REAL PARTY-IN-INTEREST, COUNSELS AND REPRESENTATIVES xxx Section 11. Appearance of Counsel or Representative. - The appearance of counsel or representative is optional. (a) I€ a party is represented by counsel, the lawyer must indicate the following in the pleadings: (4) IBP Official Receipt Number or IBP Lifetime Membership Number, including the date and place of issue; and egal Education cate Number In the signature page of the complaint, Complainants’ counsel merely indicated the following: exsh. 097812/01-07-2019 MCLE Compliance No. VI-0016879 There was no clear indication as to whether the IBP number was an official receipt number or a lifetime membership number. Moreover, the place of issue was not indicated. As to the MCLE compliance number, only the number was indicated, without the date of issue. Clearly, the IBP and MCLE details were non-compliant with the 2019 HLURB Rules of Procedure. The complaint should therefore be considered as not filed, and therefore dismissed. However, even the above procedural matter is set aside, this Office denies Complainants’ claims in the complaint. In resolving the second issue, this Office finds that there is no delay on the part of Respondent in processing the transfer of title into Complainants’ names. The contract Complainant Brenn signed provides as follows:3, TITLE TO AND OWNERSHIP OF UNIT (a) The title to the Subject unit shall remain. with SELLER subject to the provisions of the succeeding paragraphs. ib) SELLER and BUYER shall execute a Deed of Absolute Sale covering the Subject Unit Gnd cause the issuance in the name of the BUYER of the CCT covering the Subject Unit upon the happening of all of the following conditions: (.1) Full jent__of the entire Consideration, as well as interests and penalties and other expenses due thereon, if any: S-2) Performance and compliance _by BUTER of all his obligations under this Contract; and, (.3) Completion of all governmental Jegal or contractual requirements, if any, for the issuance of the CCT. (c) The Buyer shall be exclusively liable for all taxes, fees, charges and Assessments, other than income tax which Shall be for the account of the SELLER, which are imposed or to be imposed by the National or local government and other es on the sale of the Indeed, Complainants have paid in full the purchase price of the unit. This satisfies (b.1) of the contract. However, records show that Complainants only complied with (b.2) on February 2018 in the payment of the miscellaneous fees including its adjustment, and (b.3) on 14 January 2019 for the ‘submission of the marriage certificate, and on 19 February 2019 for the submission of the original tax clearance for 2019. This Office cannot likewise ignore the fact that it was only on 14 February 2019 that Complainants appeared and signed the Deed of ‘Absolute Sale and that the instant complaint was filed about a month later, or on 21 March 2019. Understanding the process of transferring titles, Complainants cannot expect Respondent to accomplish the same in weeks or less than a month as the processing times for the BIR to issue the certificate authorizing registration and the RD for the actual transfer of title are beyond Respondent’s control. In any case, Respondent had shown that it had indeed caused the transfer of titleunder Complainants’ names with the issuance of the CCT in favor of Complainants. Under the circumstances, this Office finds no delay on the part of Respondent, and Complainants should not have cried foul after signing the deed of absolute sale. ‘As to the third issue, the miscellaneous fees are well provided for in the contract, particularly in its Item 3(c). Complainants cannot claim these as unknown charges as Complainants simply had to read their contract to understand what these charges are. ‘As to the fourth issue, Complainants are not entitled to the refund of the Pi0,219.00 meter and bill deposit or the Meralco Service & Bill Deposits. This Office takes credence to Respondent's argument that these are for the account of Complainants as they actually make use of these provisions in their possession and use of the unit, which they have been since August 2012. ‘As to the fifth issue, this Office finds that Complainants are not entitled to the damages prayed for for having no basis to support the same. No bad faith may be imputed to Respondent for merely adhering to the conditions precedent set in the contract and the requirements required by the relevant government agencies for the tonsfer of title. This Office agrees with Respondent that it was Complainants who caused the delay, and Complainants should have waited for the issuance of the title considering that they have already signed the deed of absolute sale on February 2019. Complainants should not be rewarded for their delay and impatience. ‘As to the sixth issue, this Office grants Respondent's counterclaims. Records show that Respondent was merely adhering to the contract Complainants signed, had already been in the process of transferring the title into Complainants’ names, and had indeed caused the transfer of the title into Complainants’ names. By reason of this action, Respondent was compelled to hire the services of counsel to defend itself, represent its interests and protect its rights. In accordance with Article 2208 of the Civil Code, Complainants are directed to pay Respondent attorney's fees in the amount of P200,000.00. Complainants are Jikewise directed to pay Respondent exemplary damages in the amount of P100,000.00 and costs of suit. WHEREFORE, premises considered, the instant complaint is hereby DISMISSED and Complainants are ordered to pay Respondent P200,000.00 as and for attorney’s fees, P100,000.00 as and for exemplary damages, and costs of suit.SO ORDERED. Quezon City, ROWENA C. BALASOLLA Housing and Land Use Arbiter