REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGION
MAKATI CITY, BRANCH 12

ABC BANK, represented by

John Cruz, President and
Alex Magpantay, Secretary,
Civil Case no. 123-XX-123
Plaintiffs,
For: Collection
of Sum of Money and Damages
-versus-

SPS. ALLAN and LILIA

CRUZ,
Defendants,

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

ANSWER WITH SPECIAL AND AFFIRMATIVE DEFENSES

AND COUNTERCLAIM

Defendants, through the undersigned counsel, most respectfully file

their answer in response to the Complaint of the plaintiffs and interpose as
well as their counterclaims against the latter, to wit:

1. Defendants ADMIT the allegations set forth in paragraphs 1, 2, and 3 of

the complaint insofar as they relate to the personal circumstances, legal
capacity and addresses of the parties;

2. Defendants ADMIT paragraphs 4, 5, 6, and 7 of the complaint insofar as

the defendants have obtained a loan from plaintiff with the terms and
conditions stated in the paragraphs therein and issued twelve (12) postdated
 checks in the total amount of Five Hundred Seventy One Thousand Five
Hundred Pesos (P571,500.00) with BDO as the drawee bank.

3. Defendants ADMIT paragraphs 8 and 15 of the complaint insofar as the

receipt of demand letter is concerned regarding the dishonor of the second
to fifth postdated checks issued by the defendant.

4. Defendants SPECIFICALLY DENY paragraphs 9, 11, and 16 of the

complaint for reasons stated in the affirmative defenses below.

SPECIAL AND AFFIRMATIVE DEFENSES

5. Defendants set forth the following affirmative defenses to the complaint

and incorporate by reference all the foregoing allegations in so far as they
are material and relevant.

I. The original contract have been novated by an amended contract

6. The Defendants have responded to the ABC Bank (“Plaintiff”) demand

letters and were duly received by them, the contents of the replies are
attached hereto as Annexes A1-4.

a. The first reply expressed the willingness of the Defendants to settle and pay
for the obligation and contained a request to re-negotiate the terms and
conditions of the payment of the loan.
b. The second, third and the fourth replies contained the information that an
Amended Contract has already been perfected by the Plaintiff and the
Defendants, which effectively extinguished the old contract.

7. Upon the receipt of the reply of Mr. Albert Dimakulan, the Vice President
for Collections of ABC Bank, to the first reply of the Defendants, the latter
immediately contacted the former and began a new negotiation with him as
ABC Bank’s duly authorized representative, with regard to negotiation of a
 new agreement as contained in a new Amended Contract. The Amended
Contract, bearing the newly agreed terms and conditions, is attached hereto
as Annex B.

8. Mr. Albert Dimakulangan, in order to finalize the Amended Contract and

as part of ABC Bank’s standard operating procedure, presented the same to
Mr. Alex Magpantay, President of ABC Bank, for his approval. The
Amended Contract was approved by the president but was negligent to read
the contents thereof.

9. The Amended Contract was finalized and was duly notarized on July 24,
2019, effectively extinguishing the old contract. A new promissory note
was issued pursuant to the Amended Contract and is attached hereto as
Annex C.

10. Pursuant to the Amended Contract, the old contract is extinguished.

11. It was agreed upon by Mr. Dimakulangan and Sps. Cruz, during the
negotiation of the Amended Contract, that the remaining post-dated checks
be returned and to not deposit the same anymore. However, it was not
returned until the sixth post-dated check became due or on November 19,
2019.

12. The Amended Contract contains the following terms and conditions for the
payment of the loan obligation:

a. The interest payment was changed from 2.25% per month to 2.5% per
month.
b. The payment of the obligation consists of two tranches. The payment
of the first tranche will be on November 19, 2020 while the payment
of the second tranche will be on February 19, 2021.
c. Two Bank of the Philippine Islands Post-Dated Checks with Serial
Nos. 123-456 and 123-457 were issued by the Defendants dated
November 19, 2020 and February 19, 2020, respectively. Each check
issued has an amount of Two Hundred Eighty-Seven Thousand Eight
Hundred Ninety Pesos and Sixty-Three Centavos (Php287,890.63) and
 is attached hereto as Annex D1-D2.

13. Novation of the obligation extinguishes the contract. Thus, Art. 1291 of
the Civil Code provides:

“Art. 1291. Obligations may be modified by:

(1) Changing their object or principal conditions; …”

14. In the case of Adriatico Consortium Inc., v. Land bank of the Philippines,
the Supreme Court held that:
“Novation may be extinctive or modificatory. It is extinctive when an old
obligation is terminated by the creation of a new one that takes the place of
the former; it is merely modificatory when the old obligation subsists to the
extent that it remains compatible with the amendatory agreement.
For novation to take place, the following requisites must concur:
1) There must be a previous valid obligation.
2) The parties concerned must agree to a new contract.
3) The old contract must be extinguished.
4) There must be a valid new contract…”

15. In this case, there was a modificatory novation since the old obligation is
still subsisting. In addition, all the requisites as stated in the above
mentioned case was complied with. First, there was a previous valid
obligation as shown by the original contract of loan. Second, a new contract
was freely agreed upon by the Plaintiff and the Defendants by as seen in the
Amended Contract. Third, by virtue of the Amended Contract, the old
contract was extinguished. Lastly, a new valid contract was entered into by
the parties.

16. The Defendants, contrary to the allegations stated in paragraphs 9 and 11

of the complaint, incurred no delay in the payment of their obligations by
virtue of the Amended Contract entered into by the Plaintiff and the
Defendants.
II. Lack of Personal Jurisdiction

17. The complaint was filed on August 27, 2020. However, it was only on
September 2, 2020 when Defendants learned of the pending case against
them.

18. Defendants only learned of the case against them when their neighbors,
residing at 31 Makati Ave., Makati City, personally told them that a courier
went to their house and asked their maid to sign a document.

19. The courier made a mistake in serving the summons to the residents of 31
Makati Ave., Makati City and not to Defendants who reside in 32 Makati
Ave., Makati City.

20. The case of Interlink Movie Houses Inc., v. Court of Appeals has held that:

“It is settled that jurisdiction over a defendant in a civil case is acquired

either through service of summons or through voluntary appearance in
court and submission to its authority. In the absence of service or when the
service of summons upon the person of the defendant is defective, the court
acquires no jurisdiction over his person, and a judgment rendered against
him is null and void.”

21. It is unmistakable that no proper summons was properly served on

Defendants. Hence, it is humbly alleged that this Honorable Court has no
personal jurisdiction over Defendants.

Evidence to be Presented

19. Defendants shall present Mr. Allan Cruz as its primary witness to prove its
defenses against Plaintiff. Mr. Allan Cruz’s judicial affidavit is attached
hereto as Annex E.

20. Mr. Allan Cruz will be testifying on the following matters:

 a. The circumstances surrounding, and the terms and conditions of the
Amended Contract entered into between the Vice President for
Collection of ABC Bank and the Defendants.
b. The anxiety caused by the baseless suit pending against them, and;
c. The amount of legal fees and litigations costs that they have incurred.

21. Defendants will further present the following pieces of evidence:

a. Defendants’ replies to Plaintiff’s demand letters (Annexes A1-A4).
b. The original copy of the Amended Contract (Annex B)
c. New promissory note by virtue of the Amended Contract (Annexes
C).
d. Certified true copies of the two new Post-Dated Checks issued by the
Defendants pursuant to the Amended Contract (Annex D1-D2).

COUNTERCLAIM

22. The Defendants reiterate, replead, and incorporate by reference all the
foregoing insofar as they are material and additionally submit that they are
entitled to relief arising from the filing of this malicious and baseless suit.

23. The Defendants have experienced anxiety and sleepless nights due to the
Plaintiff’s baseless claims which has tarnished their family name. Hence,
Defendants claim moral damages amounting to One Hundred Thousand
Pesos (P100,000.00).

24. The Defendants were also compelled to seek legal services in order to
defend themselves. Hence, Defendants claim Attorney’s Fees amounting to
at least Fifty Thousand Pesos (P50,000.00).

PRAYER
 WHEREFORE, in view of the foregoing, Defendants respectfully
pray for an order and/or judgment as follows:

1. Setting the preliminary hearing on the affirmative defenses set forth;

2. Dismissal of Plaintiff’s complaint for lack of merit;

3. Payment by Plaintiff for Moral Damages in the amount not less than One
Hundred Thousand Pesos (P100,000.00); and

4. Payment by Plaintiff for Attorney’s fees and costs of suit incurred by

Defendants in the amount not less than Fifty Thousand Pesos
(P50,000.00).

All other relief just and equitable under the premises is likewise
prayed for.

Makati City, September 7, 2020.

 GOLP LAW OFFICES
Counsel for Defendants
Block 4-C 2 Rockwell Bldg., Rockwell Center,
Brgy. Poblacion, Makati City

By:

PATRICIA MAXINE D. GALLO

(Lifetime), Bacolod City
IBP (Lifetime Roll) No. 0123458
PTR No. 1234569, August 28, 2019, Bacolod City
MCLE Compliance V-1234569; 3/31/19
Roll No. 12347
Email add: fatgalbadgal@yahoo.com
C.P. No. 0917-123-4569

and

MA. KATRINA RAFAELLE M. ORTIZ

(Lifetime), Quezon City
IBP (Lifetime Roll) No. 0123459
PTR No. 1234560, December 3, 2019, Quezon City
MCLE Compliance V-1234560; 3/31/19
Roll No. 12348
Email add: katflowerpower@yahoo.com
C.P. No. 0917-123-4560
 VERIFICATION

We, ALLAN CRUZ and LILIA CRUZ, Filipinos, of legal age, and
residents of 32 Makati Ave., Makati City, after having been duly sworn to
in accordance with law, hereby depose and state:

1. That we have caused the preparation of the foregoing ANSWER WITH

SPECIAL AFFIRMATIVE DEFENSES;

2. The allegations in the pleading are true and correct based on our personal
knowledge, and based on authentic documents;

3. That the pleading is not filed to harass, cause unnecessary delay or

needlessly increase the cost of litigation;

4. That the factual allegations therein have evidentiary support or, if

specifically so identified, will likewise have evidentiary support after a
reasonable opportunity for discovery;

IN WITNESS WHEREOF, we have hereunto affixed our signature

this 5th day of September 2020, in Quezon City, Philippines.

ALLAN CRUZ LILIA CRUZ

Affiant Affiant

SUBSCRIBED AND SWORN to before me this 5th day of

September 2020 in Quezon City, Philippines, affiants exhibited to me
ALLAN CRUZ TIN 123- SS No. 32-
456-789 6630205-4

LILIA CRUZ TIN 222- SS No. 34-

333-444 0030644-3

as competent evidence of their identity.

DUCK BIBE
Notary Public for Makati City
Until December 31, 2021
Office: 2 Rockwell Drive, Makati City
Roll No. 444444
IBP Lifetime Roll No. 34434-56; 05/05/12 ; Makati City
PTR No. 123457 04/13/12 ; Makati City
MCLE Compliance Cert. No. 45678; 04/04/20

Doc. No. 1;
Page No. 1;
Book No. 1;
Series of 2020.