Page |1

REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA

NIXON Q. TAN,
Plaintiff-Appellee,
CA-G.R. No. CV No. 115731
Civil Case No. 2016-339
-versus- RTC, Branch 257, Paranaque City
RE: Recovery of Possession

SPS. MANUEL AND CLARITA

RICAFORTE,
Defendants-Appellants.
x—---———————————-x

APPELLANT’S BRIEF

COMES NOW the defendant-appellant – CLARITA RICAFORTE,

through counsel, unto this Honorable Court, most respectfully
states:

PREFATORY STATEMENT

Atty. I want to reiterate that FLOR REYES isa person who recruits
innocent people who has no means to pay to loan. A gay
salesman who worked at Filinves told me that he has a client who
persuaded him to recruit people to loan. Since at that time I was
new at Filinvest I was immediately introduced to Flor by Rene
Barredo. Since then Flor never stop to recruit me as her victim. I
told Flor that I am not capable to loan since I have no means of
paying and having started a part time job as sales agent at
Filinvest I knew it is not a means for me to immediately take a
risk of loaning. But Flor was persistent and told me siya ang
bahala for she can have me approved at any LOAN VERIFIER and
approval will all be done at her effort. Even I I told her that I do
not need and do not want to loan. Still she succeeded. I could
remember her words maganda ang Paranaque dahil malayo sa
fault line- from the very start she had intentions of getting my
property. And she said mahina siya sa Paranaque unlike Quezon
City where she knew the people at the Register of Deeds na
 Page |2

madali ang lahat. Pinakilala pa nga niya ako sa isang witch

looking old lady who from that time Flor was able to do all her
tactics to make me approve and follow to her every moves.
THOUGH the court does not believe in hypnotism .

In March 2010 start the greatest traumatic and disastrous part of

my of my life. Flor Reyes gave me P20,000 to open a checking
account at BPI . She told me to meet her at KFC – Farmers Cubao
and told me to bring with me my husband whom I had been
seperated for almost fourteen years kc nga daw khit separated
kami need daw pumirma ng husband ko. So I brought with me
my two daughters which Flor Reyes made my eldest daughter
signed as witness. At KFC she made me signed an REM without
explaining and did not have me read it before signing and she
was covering every pages and diverting my mind of her questions
and irrelevant talks to caught my attention for me not to mind
on what I am signing and was so fast to turn every page. Then
she made me wrote a letter signed a paper to receive the amount
of ONE HUNDRED THOUSAND PESOS , ROY GOMEZ did not sign
for fear.FLOR REYES signed as witness. ROY GOMEZ use to drive
for Flor Reyes who later was NIXON TAN’s agent/atty in fact. Who
do the errand for NIXON TAN. At KFC Flor Reyes told me to made
five checks payable to NIXON TAN and dictate the dates and
amount of P15,000 for every check. In five consecutive months.
It was my first time to see the name NIXON TAN But I have no
means to ask for FLOR REYES made things done things fast and
hurriedly. . Then Flor REYES gave me P60,000 PESOS. After the
signing I have not heard from Flor and never meet him eye to
eye or a certain NIXON TAN.- who sworn in an affidavit that we
met somewhere in Pasay and all lies was made in that affidavit
per her sworn statement which I read in the court stenographer
notes. It was only at the court room that I saw NIXON TAN .

In March 2010, the appellant only received the amount of

P60,000.oo from the appellee. But he made it appear that she
received the total amount of P300,000.oo.

She was required to issue 5 checks dated May 9, 2010,

June 9, 2010, July 9, 2010, August 9, 2010 in the amount of
P15,000.oo and September 9, 2010 for P315,000.oo thinking that
she would received the rest of the loan in the amount of
P90,000.00 (to complete the P150,000.oo).
 Page |3

She was not given the amount but was required to sign a
Real Estate Mortgage and was promised that once the Real
Estate Mortgage was annotated, she would receive the
said money. After signing the REM, she heard nothing from Roy
and Flor. She was not given the copy of the REM nor the full
amount of the loan —- which made her oblivious of her own
obligations.

After more than a year, what she received was a copy of the
summons from RTC Paranaque City with the attached Sheriff’s
Sale of her property in favor of herein

The appellee appeared to have made his bid in the amount

of P750,000.00 but never paid any single cent to the RTC
Sheriff’s Office. How did he reach that amount of
P750,000.oo when the alleged unpaid obligation was
P300,000.oo plus the amount corresponding to the
unconscionable interest of 5% per month or 60% per
annum from May 2010 to August 2011– which makes it
only P495,000.oo including the principal (if the money
given was P300,000.00) when it was sold in the auction on
September 2011.

This bad faith had been observed by the trial court:

Only when the appellee testified in court that the appellant

discovered that his representative Roy and Flor had
surreptitiously inserted a Deed of Sale among the copies of REM
for her to sign. The trial court reacted on this revelation:
 Page |4

TSN, witness: Nixon Tan, September 4, 2019 pp. 24-27

COURT: Sinong gumawa nyang Deed of Absolute Sale?

Witness: My agent, Roy Gomez

COURT: May Deed of Absolute Sale na, may foreclosure pa?

Atty. Placides: Your Honor, it was stated in his Supplemental

Judicial Affidavit also that when the Real Estate Mortgage
was executed, the Deed of Absolute Sale was also executed.

However, he was in good faith in not executing or having

this notarized the Real Estate Mortgage?

Court: Magkano ang consideration na nakalagay?

Atty. General: Php 300,000, your honor.

Court: Mr. Tan kanina sinabi mo na mortgage ito, diba?

Nakita natin at ipanakita mo yung dokumento na Real Estate
Mortgage. Tinanong ko pa yan.

Witness: Kasi po, Your Honor, that time hindi ko po

tinatanggap yung mortgage.

Court: Anong ibig sabihin na hindi mo tinatanggap yung

mortgage?

Witness: Ibig sabihin po inaalok sa akin na gusto nya mag

loan, hindi ko po kinukuha.

Court: Ayaw mo sana magpaloan? Ang gusto mo bilhin?

Witness: Hindi po, Your Honor.

Court: Anong gusto mo?

Witness: Para po in good faith sila, ang ginawa po nila,
gumawa po sila ng Deed of Absolute Sale, pinirmahan nila at
ibinigay nila sa akin.

Court: ano ba sila, nanghiram ng pera sa yo?

Witness; Yes, your honor.

Court : Kung nanghiram ng pera, loan yan at may kaakibat

na
mortgage.
 Page |5

Witness: Meron po, your honor.

Court: Hindi yan benta, iba iyon. Bakit? Meron kang papeles
dyan na benta? Totoo ba yan o kalokohan yan?

Witness: Totoo po yan, your Honor.

Atty. Placide: But it was not notarized, your honor.

Witness: Hindi ko po ipina-notaryo. Your Honor, Sila lang po

ang may sign.

Court: So may plano ka pala na bilhin iyon habang

nagpautang ka ng pera?

Witness: Kung hindi po nila mabayaran, nag offer po ako na

bilhin na lang.
Court: Sa halagang Php300,000?
Witness: dadagdagan ko po, your honor.

Court: Wla naman nakalagay dyan na dadagdagan.

Witness: Wala po pero iyon po yung offer ko sa kanila.

Court; GUSTO MO SILANG MAG-WAISAN (ed, ma-”wise”-

an) underscoring is ours.

The plaintiff-appellee had been in bad faith in acquiring this

property. First, he never gave a copy of the Promissory Note,
Real Estate Mortgage to the appellant and neither was there any
demand letter sent to her prior to his filing the Petition for
Extrajudicial Foreclosure of the Property.

The appellant had raised the issue that she never received
any demand letter prior to the scheduled Extrajudicial
Foreclosure conducted by Sheriff on September 21, 2011 to the
prejudice of the appellee which made the foreclosure TOO
PREMATURE—- but it was not given any importance.
 Page |6

Under the Civil Code, delay begins from the time the obligee
judicially or extrajudicially demands from the obligor the
performance of the obligation.

"Art. 1169. Those obliged to deliver or to do something

incur in delay from the time the obligee judicially or
extrajudicially demands from them the fulfillment of
their obligation."

It was decided by the Supreme Court in the case of

Development Bank of the Philippines v. Alejandro and Adelaida
Licuanan, G.R. No. 150097 dated February 26, 2007, to wit:

“Unless demand is proven, one cannot be held in

default. Petitioner’s cause of action did not accrue on
the maturity dates stated in the promissory notes. It is
only when demand to pay is made and subsequently
refused that respondents can be considered in default
and petitioner obtains the right to file an action to
collect the debt or foreclose the mortgage.. As we held
in China Banking Corporation v. Court of Appeals:

Well-settled is the rule that since a cause of action

requires, as essential elements, not only a legal right of
the plaintiff and a correlative duty of the defendant but
also "an act or omission of the defendant in violation of
said legal right," the cause of action does not accrue
until the party obligated refuses, expressly or impliedly,
to comply with its duty.

Otherwise stated, a cause of action has three

elements, to wit, (1) a right in favor of the plaintiff by
whatever means and under whatever law it arises or is
created; (2) an obligation on the part of the named
defendant to respect or not to violate such right; and
(3) an act or omission on the part of such defendant
violative of the right of the plaintiff or constituting a
breach of the obligation of the defendant to the
plaintiff.
 Page |7

It bears stressing that it is only when the last

element occurs that a cause of action arises.
Accordingly, a cause of action on a written contract
accrues only when an actual breach or violation thereof
occurs.

xxx
Since demand, which is necessary to make
respondents guilty of default, was never made on
respondents, the CA and RTC correctly ruled that the
foreclosure was premature and therefore null and void.

In this case, the appellee never even attempted to show

proof that the appellant was sent a demand letter about her
overdue account before he (appellee) filed the Petition for
Extrajudicial Foreclosure of the subject property.

Clearly, as stated in the aforementioned case of Philippines v.

Alejandro and Adelaida Licuanan:

Applying the foregoing principle to the instant

case, we rule that private respondent’s cause
of action accrued only on July 20, 1995, when
its demand for payment of the Home Notes
was refused by petitioner. It was only at that
time, and not before that, when the written
contract was breached and private respondent
could properly file an action in court.

The cause of action cannot be said to

accrue on the uniform maturity date of the
Home Notes as petitioner posits because at
that point, the third essential element of a
cause of action, namely, an act or omission
on the part of petitioner violative of the right
of private respondent or constituting a
breach of the obligation of petitioner to
private respondent, had not yet occurred.
(emphasis supplied)
 Page |8

The acceleration clause of the promissory

notes stated that “[i]n case of non-payment of this
note or any portion of it on demand, when due,
on account of this note, the entire obligation shall
become due and demandable ….»30 Hence, the
maturity dates only indicate when payment can be
demanded. It is the refusal to pay after demand
that gives the creditor a cause of action against
the debtor.

Did the trial court give any importance to this issue? Never
was it even mentioned in the decision. It only focused on the
title registered in the name of the appellee without minding the
issue of ownership to determine who between the parties has the
right to possess the property.

PARTIES

Defendant-Appellant is of legal age, Filipino and a resident of No.

9721 Garcia Street, Jetland Village, Baltao, Paranaque City;

Plaintiff-Appellee also of legal age, Filipino and with postal

address at Magsaysay St., Dona Faustino Subdivision, San
Bartolome, Novaliches, Quezon City.

STATEMENT OF THE CASE, FACTS and DATES

This is an ORDINARY APPEAL based on Rule 41 of the Rules of

Court to the Decision dated June 4, 2020 which was received on
July 30, 2020 and to the Order dated September 2, 2020 denying
the same which was received on September 18, 2020.

The material facts of the case are as follows;

 Page |9

1. Defendant-Appellee Clarita Ricaforte states for the record that

she had been estranged from her husband from way back, and
he no longer resides in the given address;

2. Sometime in February, 2020, appellee Clarita Ricaforte was in

dire need of money amounting to P50,000.00 to complete the
tuition fees of her children since they could not get financial
support from their father;

3. By reason of this need, she was introduced to a certain Flor

Reyes whose into looking for borrowers of money for their
financier;

4. Flor Reyes, upon learning that she owned a house and lot, with
Title in Paranaque City, pursued the Defendant-Appellant, and
asked her to borrow P150,000.oo instead of just P50,000.oo;

5. That she rejected the proposal since she had no stable source
of income to pay that big amount of loan and that she rather
planned to stick to her real purpose - to just have additional
P50,000,oo for her children;

6. But, Flor with her sweet talks and convincing power (dugo-
dugo scheme) had been making up follow-ups to her everyday
to just borrow P150,000.00. She was convinced;

7. Flor lent her the amount of P20,000.00 so that she could open
a checking account where she was even charged 100% interest
thereto;

8. The defendant never received the amount of P150,000.00 but

P60,000 only. The P20,000.00 was given to Flor for the
amount deposited in her checking account with the additional
 P a g e | 10

P20,000 as interest. The mortgagee representatives, Roy

Gomez and Flor Reyes, made her signed an acknowledgment
receipt dated March 27, 2010 showing that she only received
P100,000.00. Please see the acknowledgment receipt attached
hereto as Annex “1”;

9. After receiving the P60,000.00, she was required by Flor to

issue 5 checks. The four (4) checks dated May 9, June 9, July 9
and August 9, 2010 were all in the amount of P15,000.oo. The
last check dated September 9, 2010 was in the amount of
P315,000.oo;

10. That the appellant was

promised to get the additional amount of the loan upon the
annotation of the real estate mortgage on the title. Please see
the receipt which is Annex “1” of the Answer;

11. The Real Estate Mortgage

(REM) appears to have been signed on April 6, 2010 and the
annotation was done on April 7, 2010 BUT after signing the
REM, the appellee’s representatives NEVER showed up to give
the additional money. In short, she only got P60,000.oo
from the appellee’s representatives;

12. After signing, she nor her

estranged husband never appeared before a notary public
since the appellee’s representatives never showed up after
that. She kept waiting on the belief that they were all in good
faith;
 P a g e | 11

13. How could the appellant

pay for her loan when she had no copy of the REM? She did
not know her obligations in details. Why would she pay
P15,000.oo a month for P60,000.oo loan? WORSE, she never
received any demand letter of her overdue obligations prior to
the scheduled foreclosure proceedings;

14. Upon gathering the

documents, the appellants discovered the following:

a. There was no evidence that the scheduled auction sale

was published in a newspaper;
b. There were no 2 bidders on the scheduled auction sale
but the sheriff allowed in violation of A.M. No. 99-10-05-0
Re: Procedure in Extra-Judicial Foreclosure of Mortgage.

5. No auction sale shall be held unless

there are at least two (2) participating
bidders, otherwise the sale shall be
postponed to another date. If on the new
date set for the sale there shall not be at
least two bidders, the sale shall then
proceed. The names of the bidders shall be
reported by the sheriff or the notary public
who conducted the sale to the Clerk of
Court before the issuance of the certificate
of sale.

c. The appellee had instructed his representatives to insert

surreptitiously a blank Deed of Absolute Sale (for the
subject property in the amount of P300,000.oo) so that
the appellant would sign it along with the REM without
knowing it;

d. No demand letter demanding to pay the overdue

account was sent to the appellant;
 P a g e | 12

e. They made it appear that her outstanding balance is

P750,000.00 But how did they compute it when it was
alleged that her obligation was P300,000.oo only? Then
the appellee never handed even a single cent to the
sheriff.

f. They all conspired to get her property for a measly

amount of P60,000.oo.

g. She never appeared before any notary public for

notarization in relation to the REM. It was only the
appellee who caused it to be notarized — inventing
Community Tax Certificate (CTC) for her and her
husband’s.

I. She received no demand letter to vacate. Not even her

husband who has been living separately away from the
appellant;

15. Everything was done in bad faith — thus, not only the issue
of mere possession the property should be discussed but the
issue of ownership thereof is material in this case to determine
who has the better right to possess the same;

16. The trial court had noticed the bad faith of the appellee when
he had caused the preparation of the Deed of Absolute Sale and
of the Real Estate Mortgage. It also took notice that the appellee
had never paid the amount of his bid price of P750,000.00 when
this amount had no basis as the unpaid obligation of the
appellant;

TSN, Nixon Q. Tan, September 4, 2019, pp. 19-21

Court: Kailan na-foreclose, natatandaan mo pa ba?

Witness: No, your Honor, hindi ko na po matandaan.

 P a g e | 13

Atty. Placides: A Certificate of Sale was issued last

October 6, 2011, your Honor. (Ed. It was the counsel
who kept on answering for the appellee)

Court: Yung mortgage nyo kailan?

Atty. Placides: April 2010. Your Honor.

Court: So ang bili mo doon sa foreclosure, Php750,000?

Witness: Yes, your honor.

Court: Ibinayad mo ba yung Php750,00o doon sa Clerk of

Court’s Office o hindi?

Witness: Yes, your honor?

Court: Meron kang resibo?

RECORD: No answer

Atty. Placides: Wala po, it is just stated in the Certificate

of Sale, Your Honor. (Ed. It was the counsel who
answered again for the witness-appellee)

Court: Wala kayong maipakitang resibo?

Witness: Wala po, Your Honor.

Court: Bakit wala? Hindi ka nagbayad? Hindi mo

matandaan?

Witness: Hindi ko na po matandaan.

17. With all the fraudulent acts of the appellee and his cohorts,
he was able to transfer her property to his name for lending her
only P60,000.00 – – all of these were done without her
knowledge, without giving her the chance to fight back, to
redeem the property;
 P a g e | 14

18. This scheme of the appellee did not escape the attention of
the trial court — however, the trial court needed to stick to the
principle that whoever has the title, he should possess the same
even if the issue of ownership was brought to fore.

Hence this Appeal.

ASSIGNMENT OF ERRORS

1. The trial court gravely erred in just relying

on the title (TCT) being registered in the name
of the appellee as the sole basis to decide in
favor of the accion publiciana;

2. The trial court gravely erred in not

considering in his decision the observed
manipulations done by the appellee in
transferring the registration of the property in
his name;

3. The trial court gravely erred in not

considering the lack of demand letter demanding
from the appellant the alleged overdue obligation
prior to the foreclosure proceedings - which
makes the auction sale PREMATURE.

DISCUSSION

1. The trial court gravely erred in

just relying on the title (TCT) being
registered in the name of the
appellee as the sole basis to decide
in favor of the accion publiciana
——————————————————

2. The trial court gravely erred in

not considering in his decision the
observed manipulations done by
 P a g e | 15

the appellee in transferring the

registration of the property in his
name.
——————————————————

There are instances when the court would try and decide a
case for ejectment and/or accion publiciana based merely on as
to who holds the title of the property without taking into
consideration the issue of ownership despite being raised by the
defendant-appellant.

Based on the case of Philippines v. Alejandro and Adelaida

Licuanan (ibid), it was ruled:

Besides, it must be emphasized that this case is

one for recovery of possession, also known as
accion publiciana, which is a plenary action for
recovery of possession in an ordinary civil
proceeding, in order to determine the better and
legal right to possess, independently of title. The
objective of the plaintiffs in accion publiciana is to
recover possession only, not ownership. However,
where the parties raise the issue of ownership, the
courts may pass upon the issue to determine who
between the parties has the right to possess the
property. This adjudication, however, is not a final
and binding determination of the issue of
ownership; it is only for the purpose of resolving
the issue of possession where the issue of
ownership is inseparably linked to the issue of
possession. The adjudication of the issue of
ownership, being provisional, is not a bar to an
action between the same parties involving title to
the property.

The admissions of the appellee clearly proved that the

taking away of the property from the appellee from the measly
amount of P60,000 is a “manipulation” and act of deceit.
 P a g e | 16

The appellee had the intention of grabbing the property for a

measly amount of P60,000.oo by making it appear that she
borrowed P300,000.oo when in fact he never gave such amount
as revealed by the Acknowledgment Receipt of P100,000.oo
signed by the appellant and appellee’s representative wherein it
was undeniably stated that the balance will be given after the
annotation of the Real Estate Mortgage in the title. WITHOUT A
DOUBT, he let her signed a Real Estate Mortgage, a Deed of
Absolute Sale (done surreptitiously) and to issue 5 checks
payable to him BUT without giving simultaneously (with the
signing of documents) the borrowed money. AND NEVER WAS
ANY ACKNOWLEDGMENT RECEIPT of the complete loan after the
REM was annotated in the office of the Register of Deeds of
Paranaque.

The appellant only received the amount of P60,000.00 since

the P40,000.oo was taken by Flor as payment for the P20,000.oo
she deposited when she opened a checking account for the
appellant.

The appellant was waiting for the money and for the copy of
the REM but her waiting ended up receiving only summons from
the trial court. That was only time she discovered that the
appellee had managed to transfer the property worth millions in
his name. She nor her estranged husband received NO
DEMAND LETTER for her to pay the overdue amount of
P60,000.00 plus the very unconscionable 5% interest a
month.

During the trial, the appellee never showed proof that the
demand letter was indeed sent to her prior to the scheduled
 P a g e | 17

proceedings. Moreover, the manner of how the property was

being raised as an issue because the appellant was never
notified. She was also aware that no posting in the barangay of
the scheduled auction sale was done since she is known in the
barangay and in the market near her place— and nobody had
informed her about it nor had she seen any of it posted in a very
conspicuous place. Not one newspaper had been submitted by
the appellee about it.

It may be correct that in accion publiciana, it is only the

issue of possession is being resolved but there is no reason for
any trial court to be blind on what it really observed and
discovered on how the complainant had manipulated the transfer
of property in his name.

Similar to this case, the trial court discovered the evil plan of
the appellee of transferring the property in his name when he had
caused (surreptitiously) the appellee to sign a Deed of Absolute
Sale. Even if it was not availed of in transferring—— there is a
clear proof that he would, by hook or by crook, would do
everything to get the property for giving only P60,000.oo.

Furthermore, the appellee (without him analyzing it)

ADMITTED that he never caused the Deed of Absolute Sale be
notarized.

(Same TSN as mentioned above)

Court: Anong gusto mo?

 P a g e | 18

Witness: Para po in good faith sila, ang ginawa po nila,

gumawa po sila ng Deed of Absolute Sale, pinirmahan nila at
ibinigay nila sa akin.

Court: ano ba sila, nanghiram ng pera sa yo?

Witness; Yes, your honor.

Court : Kung nanghiram ng pera, loan yan at may kaakibat

na
mortgage.

Witness: Meron po, your honor.

Court: Hindi yan benta, iba iyon. Bakit? Meron kang papeles
dyan na benta? Totoo ba yan o kalokohan yan?

Witness: Totoo po yan, your Honor.

Atty. Placide: But it was not notarized, your honor

Witness: Hindi ko po ipina-notaryo. Your Honor, Sila lang

po ang may sign.

His ANSWER: “HINDI KO PO IPINA-NOTARYO....

SILA LANG PO ANG MAY SIGN” would further prove that he
just let the appellant sign the documents — and that he could
just cause it to be notarized in the absence of the appellant. THIS
CONFIRMS the allegations of the appellant that she never
appeared before a notary public.

He manipulated the situation —- he managed the appellant

and her estranged husband signed even the DEED OF ABSOLUTE
SALE when there was no plan on the part of the petitioner to sell
the property (worth millions) for just P60,000.00 or P100,000.00.
Such an EVIL SCHEME.

The appellee also confirmed that he never paid the

P750,000.00 to the sheriff as the lone bidder during the auction
 P a g e | 19

sale. But how did he reach this amount as her total obligation
when he only handed (thru representative the amount of
P60,000.00. The Bank receipt (exhibit “1”) would prove further.

These are all issues regarding ownership which could have

been discussed and resolved in order to determine who among
the parties has the better right to possess the property.’’

The trial court gravely erred in not

considering the lack of demand
letter demanding from the
appellant the alleged overdue
obligation prior to the foreclosure
proceedings - which makes the
auction sale PREMATURE.
——————————————————

Since day 1, this issue of NO DEMAND LETTER before the

auction has been raised as issue by the appellant but did the trial
give importance to this? Not even the appellee submit proof that
he sent a demand letter for her to pay the overdue obligation.

He intentionally did not sent her any demand letter so that

she would not have any idea of his plan to have the property
foreclosed.

She also never received any Notice of Sale—- preventing her

to redeem her property on time.

It should be remembered that: “No demand, no delay.” This

rule is provided in Article 1169 of the Civil Code, where those
obliged to deliver or to do something incur a delay from the time
the obligee (or the person to whom an obligation is owed)
judicially or extrajudicially demands fulfillment of the obligation.
 P a g e | 20

In a situation where a debtor defaults on his payment of a

loan, the law requires that a demand has to be made by the
creditor before the debtor can be considered delayed on his
payments, then the loan has not yet become due and
demandable, and any foreclosure of property used as collateral
for the loan would be considered premature.

It was ruled in the case of DBP v. Licuanan G.R. No.

150097 February 26, 2007:

The acceleration clause of the promissory notes stated

that "[i]n case of non-payment of this note or any portion
of it on demand, when due, on account of this note, the
entire obligation shall become due and demandable …
Hence, the maturity dates only indicate when payment
can be demanded. It is the refusal to pay after demand
that gives the creditor a cause of action against the
debtor.

Since demand, which is necessary to make

respondents guilty of default, was never made on
respondents, the CA and RTC correctly ruled that
the foreclosure was premature and therefore null
and void.

ALL THESE ISSUES CAME UP but were all ignored

because of the wrong notion that who ever is the
registered owner of the property, he has all the right to
enjoy and possess it no matter what issue of ownership is
being raised.

PRAYER
 P a g e | 21

WHEREFORE, premises considered, it is most respectfully

prayed that the Decision dated June 4, 2020 be SET ASIDE.
Other remedies are likewise prayed for.
Quezon City for Manila, January 6, 2021.

CLARISSA A. CASTRO
Collaborating Counsel for the
Appellant -Clarita Ricaforte
Unit 502-A, KING CENTER BLDG.,
No. 57 Sgt. Rivera Street, Manresa,
Quezon City, MM, 1115 Philippines
IBP Roll of Attorneys #39245
IBP Lifetime Roll #01446
PTR No. 0598814 D/1-04-2021/Q.C.
MCLE No. VI-00002592/6-20-2017
MCLE VII-Assigned number pending
E-mail: attorneyclaire@gmail.com
Tel No. (02)8922245/09189447518
 
 
cc:
 
Atty. Antonieta B. Alano-Placides          Reg. Receipt No. _______
Counsel for the plaintiff-appellee
2nd Floor, Calderon Building
No. 827 Edsa, Quezon City

Regional Trial Court Reg. Receipt No. _______

Branch 257, Paranaque City

 
 
PROOF OF SERVICE
 
 
Copy of the foregoing APPELLANT’S BRIEF was served to
this Honorable Court of Appeals and to the other parties
by registered mail in view of the distance between the parties
address which make personal service impractical and by reason of
GCQ.
 
 P a g e | 22

  
  
                                                CLARISSA A. CASTRO

AFFIDAVIT OF SERVICE

I, VIRGIE T. LADRA, of legal age, Filipino and with postal address at Rm 502 A King
Center, No. 57 Sgt. Rivera, Quezon City, 1115, hereby depose and state:

1. That I am the secretary of The Law Firm of Clarissa A. Castro;

2. That I was tasked to send the copy of this Appellant’s Brief to the Honorable Court of
Appeals and other aforementioned parties:

3. That I served the copy thereof as follows:

(a) Regional Trial Court, RTC, Branch 257, Paranaque City ( ) personally ( /) post office ( )
express mail/courier ( ) electronic mail;

(b) Atty. Antonieta  B. Alano-Placides          ( ) personally (/ ) post office ( ) express

mail/courier ( ) electronic mail

4. That the brought the mail(s) to the ( ) post office (. ). courier/ express mail service
provider in a sealed envelope addressed to the aforementioned office/ parties with postage fully
prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10)
calendar days if not delivered;

5. That I attached the ( / ) registry receipts

( ) official receipts and
tracking number of the express mail service provider
 P a g e | 23

6. ONLY IF MAILING IS RESORTED : That we resorted to ( ) mailing due to lack of time

and personnel to personally serve this document/pleading.

AFFIANT FURTHER SAYETH NAUGHT.

VIRGIE T. LADRA
Affiant
Company ID No. 111

SUBSCRIBED AND SWORN to before me this 6 th day of January, 2021, in

Caloocan City, M.M. affiant exhibited to me her company number appearing below
her name and signature.

Doc. No. ___

Page No. ___ Notary Public
Book No. ___
Series of 2021

REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA

NIXON Q. TAN
Plaintiff-Appellee,

- vs –

SPS. MANUEL AND CLARITA RICAFORTE,

Defendants-Appellants.
x---------------------------------------------------------------x

CA-G.R. CV NO. 115731

(RTC, BR. 257, PARANAQUE CITY
CIVIL CASE NO. 2016-339)

*****
APPELLANT’S BRIEF
 P a g e | 24

CLARISSA A. CASTRO
Collaborating Counsel for the
Defendant-Appellant - Clarita Ricaforte
Unit 502-A, KING CENTER BLDG.,
No. 57 Sgt. Rivera Street, Manresa,
Quezon City, MM, 1115 Philippines
IBP Roll of Attorneys #39245
IBP Lifetime Roll #01446
PTR No. 0598814 D/1-04-2021/Q.C.
MCLE No. VI-00002592/6-20-2017
MCLE VII-Assigned number pending
E-mail: attorneyclaire@gmail.com
Tel No. (02)8922245/09189447518

Quezon City for Manila

January 6, 2021

Table of Content
Page

I. – PREFATORY STATEMENT 1-7

 
II. –PARTIES/STATEMENT OF THE CASE,
FACTS AND MATERIAL DATES 7-12

III. – ASSIGNMENT OF ERRORS 13

IV. – DISCUSSION 13-19

IV. - PRAYER 19

V. – AFFIDAVIT OF SERVICE 21

LAWS & REFERENCES

 P a g e | 25

 Art. 1169 (under the Civil Code)

 Development Bank of the Philippines v. Alejandro and Adelaida
Licuanan, G.R. No. 150097 dated February 26, 2007
 Philippines v. Alejandro and Adelaida Licuanan
 DBP v. Licuanan G.R. No. 150097 February 26, 2007