Republic of the Philippines

REGIONAL TRIAL COURT

National Capital Judicial Region
Branch 97, Quezon City

GAVINO L. BARLIN, EDITHA BARLIN-TAN

AND ANITA BARLIN- WE,
Plaintiffs,

- Versus - Civil Case No. R-QZN-22-11062-CV

For: Annulment of the Deed of Real Estate
Mortgage and Payment of Rent

GEMMA ESCANILLA- STOECKLIN

And ALMA ESCANILLA ESTEVES,
Defendants.
x------------------------------------------------------x

PRE TRIAL BRIEF

PLAINTIFFS, by counsel, to this Honorable Court in compliance with its Order dated
March 20, 2023, copy of which was received on April 25, 2023 hereby submit the Pre Trial
Brief and state that:

I. STATEMENT OF THE CASE AND RELIEFS PRAYED FOR

1. In 1946 after World War II, spouses Melecio and Teodora Barlin acquired the
house and lot of Teodora De Que Lee located in Barangay Camcaman, Matnog, Sorsogon.
The Tax Declaration No. 2958 dated 1949 of Teodora De Que Lee was cancelled and a
new Tax Declaration No.3684 year 1955 was issued to Melecio Barlin (Melecio) and the
same was updated and revised by the Provincial Assessor until 1996.

2. Melecio resided in the house with his eight (8) children. After his children got
married and left the family home, spouses Melecio and Teodora lived in their family home
until Melecio passed away on February 15, 1969, while Teodora passed away on January 5,
1974. After the death of spouses Melecio and Teodora, plaintiffs and his co-heirs inherited
the house and the 977 sq. m. lot.

3. One of the heirs, brother Cecilio Barlin (Cecilio) who has no house of his own
resided in the family home with his second wife after the death of his first wife, in order to
preserve and maintain the family home. The heirs agreed not to partition and divide the
family home in order to preserve the memory of their parents.

4. In 2020, plaintiff Gavino Barlin (Gavino) found out that the Tax Declaration No.
93-12-014-0064 of the house and lot of Melecio was cancelled and a new Tax Declaration
No. 1996-12-0014-0078 was issued in the name Cecilio.

5. Hence, plaintiff Gavino wrote a letter dated December 9, 2020 to Engr. Loreto LL
Gilbas. Provincial Assessor inquiring what was the legal basis of his office in cancelling the
Tax Declaration No. 93-12-014-0064 Lot 140 of Melecio and issuing a new Tax Declaration
No. 1996-12-0014-0078 dated 1997 to Cecilio.

6. In reply to his letter, Provincial Assessor Gilbas wrote plaintiff Gavino:

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xxx

“Upon research and inspection of the records in our office, we found out
that there were clerical errors during the Manual General Revision in the
year 1996 which caused the cancellation of the said tax declaration. Hence,
taking into consideration the abovementioned matter, it is deemed proper and
necessary to restore the Tax Declaration of Lot 140 in the name of Heirs of
Melecio Barlin from 1996 and onwards.”

xxx

7. Consequently, the tax declaration of Lot 140 of Melecio was restored retroactive
to 1996 by the Provincial Assessor by issuing a new Tax Declaration No. ARP-No. 2014-
11-0013-00503 in the name of the Heirs of Melecio Barlin. Hence, all the tax
declarations of lot 140 issued after 1996 were expressly cancelled and revoked by the
Provincial Assessor.

8. Cecilio passed away on February 10, 2020 due to a lingering kidney ailment. Prior
to his death, he was bedridden and undergoing dialysis at the Sorsogon Doctors (SORDOC)
hospital in Sorsogon City, where his daughter Dr. Rossana Barlin-Galeria is a consultant.

9. After the death of Cecilio, his eldest daughter Roselyn Barlin from his first
marriage gave to plaintiff Gavino a copy of the “Deed of Real Estate Mortgage (Deed),
wherein Cecilio mortgaged 100 square meters of the undivided family home lot to
defendant Gemma Stoecklin (Gemma) to guaranty his personal loan of P600,000.00
without the knowledge and consent of plaintiffs and their co-heirs which reads:

xxx

DEED OF REAL ESTATE MORTGAGE

KNOW ALL MEN BY THESE PRESENTS:

THIS AGREEMENT, executed by and between CECILIO BARLIN, of legal age, married to
Teresa Bonuel-Barlin, Filipino, with residence and postal address at Camcaman, Matnog,
Sorsogon, Philippines, herein referred to as the MORTGAGOR and GEMMA STOECKLIN, of
legal age, married, with residence and postal address at Sulangan, Matnog, Sorsogon,
Philippines, herein referred to as the MORTGAGEE;

That for and in consideration of the sum of SIX HUNDRED THOUSAND PESOS
(Php600,000.00), hand paid by the MORTGAGEE to the entire satisfaction of the
MORTGAGOR, the latter hereby CONVEY by way of this DEED OF REAL ESTATE MORTGAGE,
her heirs, successors and assigns the one-story building/Store and lot containing an area of
ONE HUNDRED (100) SQUARE METERS , located at Barangay Camcaman, Matnog, Sorsogon,
portion of Lot 140, which is more particularly described as follows:

“A parcel of Commercial land under ARP No. 2014-11-0013-00503 Survey No. 140,
Bounded on the North by Lot No. 141; in the South by Lot No. 139; on the East by Lot No.
438; and on the West MUNROAD, consisting an area of Nine Hundred Seventy Seven (977)
Square Meters.”

That this mortgage shall be valid and effective until the amount is fully paid commencing
upon the execution of this document.

That should the MORTGAGOR truly and faithfully comply with his obligation by paying
and redeeming the mortgage in full, then this mortgage shall become null and void and
rendered without further force and effect, otherwise, this mortgage may be enforced and
foreclosed extra-judicially pursuant to the provisions of Act 3135, as amended by Act 4118.

Cecilio Barlin (Thumbmark) Gemma Stoecklin (Sgd.)

Mortgagor Mortgagee
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Postal ID No. 3755115 ID No. P0966844A

With my conformity:

Teresa Bonuel-Barlin (Sgd.)

Mortgagor’s Spouse

SIGNED IN THE PRESENCE OF:

_________________________ Romeo Esteves (Sgd.)

ACKNOWLEDGMENT

BEFORE ME, a Notary Public for and in the City of Sorsogon, this JAN 08, 2019, at
Sorsogon City, personally appeared CECILIO BARLIN, the MORTGAGOR, and ALMA
ESCANILLA ESTEVES, the MORTGAGEE, with their respective competent identifications
written below their names, known to me and to me known to be the same persons who
executed the foregoing instrument “DEED OF REAL ESTATE MORTGAGE” and acknowledged
to me that the same is their own free and voluntary act and deed.

WITNESS MY HAND AND NOTARIAL SEAL this JAN 08, 2019 at Sorsogon City, Sorsogon,
Philippines.

Doc. No.: 450; ATTY RELINA D. ARELLANO

Page No.: 91; Roll of Atty. No. 68134
Book No.: 03; IBP No. 1070303-03/09/2018
Series of 2019. PTR No. 8538432-01/09/2018
MCLE COMPLIANCE No. Exempt Admitted in the BAR 2018
NOTARY PUBLIC UNTIL DECEMBER 31, 2019

xxx

10. Surprisingly, Dr. Galeria who is attending to her father Cecilio at the Sorsogon
Doctors (SORDOC) was not informed by the second wife of Cecilio of the plan to mortgage
the 100 sq. m property which is a portion of the 977 undivided property of plaintiffs and
their co-heirs which they inherited from the parents. It would appear that the second wife
who is attending to Cecilio surreptitiously manipulated Cecilio to mortgage the same
behind the back of the children of Cecilio from his first marriage and from his siblings and
co-heirs.

11. Plaintiff Gavino wrote a letter dated January 14, 2021 to defendants Gemma
Stoecklin (Gemma) and Alma Esteves (Alma) and told them that the Deed executed by
Cecilio mortgaging 100 sq. m. which is a portion of 977 sq. m. undivided property of
plaintiffs was executed by Cecilio without their knowledge and consent and therefore it is
not binding against them and their co-heirs, and the same is unenforceable and null and
void.

12. Furthermore, plaintiff Gavino pointed out that Cecilio signed the Deed by thumb
mark in the absence of the notary public Relina D. Arellano (Arellano) who notarized the
same and only Romeo Esteves, husband of defendant Alma witnessed the same in gross
violation of the notarial law, and despite the “irregularities” in the execution of the Deed as
admitted by notary public Arellano in her letter dated February 12, 2021 to Atty. Barlin,
she notarized the same in conspiracy with the parties to the Deed. The letter of Atty.
Arellano reads:
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xxx

“I am writing to you at the behest of my client, ALMA ESCANILLA ESTEVES,

the subject of which pertains to your letter dated 14 January 2021.

Stated in your letter that you were demanding my client to pay P5,000.00
monthly rental of the 100 square meters space she is occupying starting
January 2019 until February 2021. Your demand has rooted in the questioned
Deed of Real Estate Mortgage (“DEED”) executed by your brother Cecilio
Barlin, being the Mortgagor, and my client Alma Escanilla Esteves, being the
Mortgagee, notarized on 08 January 2019. You said that the “DEED” would
be rendered unenforceable for being null and void because of so many
irregularities such as the authenticity of the thumbprint of your brother,
Cecilio Barlin, the “two witnesses” rule and the signature of the
Mortgagee, Alma Escanilla Esteves.

In response to the foregoing, my client would like to provide you copies of

the Letters signed by Ma. Teresa B. Barlin (dated 08 February 2021) and
Cecille Barlin, the wife and daughter, respectively, of your late brother Cecilio
Barlin, attesting to the fact, truthfulness and due execution of the Deed of Real
Estate Mortgage pertaining to the 100 square meters space with a constructed
one-storey building at Barangay Camcaman, Matnog, Sorsogon. The duo
stated that the mortgage of the above described property, which is only a
portion of 977 square meters undivided property of your late parents,
was due to a dire need for a certain amount which was utilized for the
construction of a safe and decent house of your late brother’s family.

Furthermore, we would like to inform you that the source of Six Hundred
Thousand Pesos (P600,000.00) amount of consideration in the “Deed” was
Gemma Stoecklin, who was duly represented by Alma Esteves. Though we
acknowledge some defects in the document, it would not render the “Deed”
invalid and the transaction non-existent because in fact and in truth the 100
square meters portion of the property was subjected to mortgage. The
immediate family members of the deceased Mortgagor recognized the whole
between my client and your deceased brother. Furthemore, it was only a 100
square meters portion of the 977 square meters lot owned by your late
parents, that your eldest brother mortgaged to my client due to a dire
financial need.

In view of the foregoing, my client is not duty bound to pay your authorized
representatives monthly rentals for the 100 square meters space as it was the
subject property described in the Deed of Real Estate Mortgage.

Please be informed also that one of the daughters of your brother, who
respects and acknowledges the authenticity and due execution of the said
“Deed” is now communicating with my client in order to redeem the subject
mortgaged property.

xxx

13. Surprisingly, when defendant Alma filed her Verified Answer dated February 23,
2023 in the above-entitled case, and she attached another copy of “Deed of Real Estate
Mortgage” (Deed) allegedly executed by Cecilio, wherein the same 100 sq. m. property
was earlier mortgaged to defendant Alma.

14. However, the Deed was executed by Cecilio in favor of defendant Alma and
Cecilio signed the Deed by thumb mark again in the absence of the notary public and the
same was notarized by Atty. Relina D. Arellano. Again, Atty. Arellano did not certify that
she was present at the time Cecilio affixed his thumb mark on the Deed.
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15. Moreover, the Deed executed by Cecilio in favor of defendant Alma was notarized
by Atty. Arellano under the same Doc. No. 450; Page No. 91; Book No. 03, Series of 2019.
Simply stated, Atty. Arellano used the SAME Doc. No. 450; Page No.91; Book No. 03; Series
of 2019 .

16. Clearly, Atty. Arellano notarized two (2) separate and distinct Deeds under the
SAME Doc. No. 450; Page No. 91; Book No. 03; Series of 2019. Evidently, the act of Atty.
Arellano in notarizing two separate and distinct Deeds, the first Deed in favor of defendant
Alma and the second Deed in favor of defendant Gemma, amounts to gross misconduct and
abuse of her notarial authority to convert private documents into public documents by
making the documents admissible in evidences without further proof of authenticity in
violation of the Notarial Law and the Code of Professional Responsibility.

17. We submit that the notarization of the Deed of Mortgage of Real Property
executed by Cecilio in favor of defendant Gemma did not convert the said document into a
public document and the same is unenforceable being null and void.

18. Defendants Gemma and Alma are fully aware that the Deed executed by Cecilio
in favor of defendant Gemma was “irregularly executed” as admitted by Atty. Arellano.
Nonetheless, in evident bad faith, defendants Gemma and Alma insisted that the same is
valid and enforceable and refused to pay the monthly rental of P5,000 for the reasonable
use of the premises.

19. Consequently, plaintiffs were constrained to engage the services of a counsel for a
fee to protect their interest and to prosecute the case in court. Defendants Gemma and
Alma should be made answerable to damages and attorney’s fees jointly and severally.

II. SUMMARY OF ADMITTED FACTS

1. The parties’ capacity to sue and be sued.

2. The parties admit the jurisdiction of the court.

3. Defendants Gemma and Alma admitted that the 100 sq. m. is a portion of the 977
sq. m. undivided property of plaintiffs and their co-heirs which they inherited from their
parents.

III. PROPOSED STIPULATION FACTS

1. Whether defendants Gemma and Alma will stipulate that the house and lot is owned
by Melecio and Teodora Barlin and after their death the same was inherited by their
eight children and heirs.

2. Whether defendants Gemma and Alma will stipulate that the house and lot was not
divided and partitioned by plaintiffs and their co-heirs after the death of their
parents.

3. Whether defendants Gemma and Alma will stipulate that Cecilio has no authority
and right to mortgage the shares of plaintiffs and their co-heirs without their
consent.

4. Whether defendants Gemma and Alma will stipulate that they are jointly and
severally liable to pay the rentals and exemplary damages plus attorney’s fees.
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MAIN FACTUAL AND LEGAL ISSUES TO BE TRIED OR RESOLVED

1. Whether or not Cecilio has the right to mortgage the 100 sq. m.
property which is a portion of their undivided property with
plaintiffs and co-heirs without their knowledge and consent.

2. Whether or not the Deeds executed by Cecilio mortgaging a portion of

the undivided property without their knowledge and consent of
plaintiffs and their co-heirs is valid and binding against them.

3. Whether or not defendants Gemma and Alma Esteves are jointly and
severally liable to pay the rentals of the premises, exemplary damages
and attorney’s fees.

PROPRIETY OF REFERRAL OF FACTUAL ISSUES TO COMMISSIONERS

1. Plaintiff is amenable to refer the factual issues to a Commissioners.

DOCUMENTARY EVIDENCE AND PURPOSE

1. Exhibit “A” – Archival Record issued by the Provincial Assessor

Purpose: To show that Lot 140 was acquired by spouses Melecio and Teodora
Barlin from Teodora De Que Lee in 1955 and a new Tax Declaration was issued to Melecio
in 1949 by the Provincial Assessor. Since then, the tax declaration of melecio was revised
and updated until 1996.

2. Exhibit “B” – Letter dated December 9, 2020 of Atty. Gavino L. Barlin to Engr.
Lorreto LL. Gilbas, Provincial Assessor, Sorsogon.

Purpose: To show that when plaintiff Gavino learned that the Tax Declaration No.
1993-12-014-0064 of his father Melecio was cancelled and a new Tax Declaration No.
096- 12-013-5078 was issued to Cecilio, he wrote Provincial Assessor Gilbas inquiring the
legal basis of his office in cancelling the tax declaration of his father Melecio and issuing a
new tax declaration to Cecilio.

3. Exhibit “C”. Letter dated December 16, 20202 of Provincial Assessor Gilbas to
Atty. Gavino L. Barlin.

Purpose: To show that upon receipt of the letter of plaintiff Gavino, Provincial
Assessor Gilbas review the records of his office:

xxx

“Upon research and inspection of the records in our office, we found out that
there were clerical errors during the Manual General revision in the year 1996
which caused the cancellation of the said tax declaration. Hence, taking into
consideration the above mentioned matter, it is deemed proper and necessary to
restore the Tax Declaration of Lot 140 in the name of Heirs of Melecio Barlin from
1996 and onwards.”

xxx

4. Exhibit “D” - Tax Declaration ARP No. 2014-11-0013-00503 issued by the

Provincial Assessor.
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Purpose: To prove that after the Provincial Assessor restored the Tax Declaration of
Lot 140 of Melecio, it issued Tax Declaration ARP No. 2014-11-0013 in the name of the
Heirs of Melecio Barlin.

5. Exhibit “D-1” – Signature of Provincial Assessor Loreto LL. Gilbas.

Purpose: To Show that Provincial Assessor Gilbas signed Tax Declaration ARP-No.
2014-11-0013 in the name of the Heirs of Melecio Barlin.

6. Exhibit “E” – Deed of Real Estate Mortgage (Deed) dated January 8, 2019 between
Cecilio Barlin and Gemma Stoecklin.

Purpose: To show that Cecilio mortgaged 100 sq. m. of the property which is a
portion of 977 sq. m. undivided property of plaintiffs and their co-heirs without their
knowledge and consent.

7. Exhibit “E-1” – Second page of the Deed Acknowledgement

Purpose: To show that defendant Alma acknowledged the Deed as mortgagee when in
fact she is not a party to the Deed. The mortgagee is defendant Gemma.

8. Exhibit “E-2”- Thumbmark of Cecilio Barlin

Purpose: To prove that Cecilio affixed his thumb mark in the Deed in absence of the
notary public. In fact, there is no certification that at the time Cecilio affixed his thumb
mark in the Deed notary public Arellano was present in violation of the notarial law.

9. Exhibit “E-3” -Signature of Gemma Stoecklin

Purpose: To prove that it was made to appear that Gemma Stoecklin signed the Deed
in the presence of notary public Arellano, when in fact she was in Switzerland at the time
she allegedly signed the same.

10. Exhibit “E-3” -Signature of Romeo Esteves

Purpose: To prove that only Romeo Esteves, husband of defendant Alma is the sole
witness when Cecilio affixed his thumb mark in violation of the notarial law.

11. Exhibit “F” – Letter dated January 14, 2021 sent by Atty. Gavino L. Barlin to
defendants Ms. Gemma Stoecklin and Alma E. Esteves.

Purpose: To show that before plaintiff Gavino filed the instant complaint, he wrote to
defendants Gemma and Alma informing them that the 100 sq.m. property mortgaged by
Cecilio Barlin is a portion of the 977 sq, m. undivided property of plaintiffs and their co-
heirs, and Cecilio has no authority to mortgage the same without their consent and
knowledge. Hence, the Deed is unenforceable and null and void, and demanded that the pay
the reasonable rental of P5,000 of the 100 sq. m. undivided property.

12. Exhibit “G” – Answer dated 12 February 2021 of defendant Alma Escanilla
Esteves thru her counsel, Atty. Relina D. Arellano

Purpose: To prove that defendant Alma admitted in her letter to Atty Barlin that the
100 sq. m. mortgaged by Cecilio to defendant Gemma is a portion of the 977 sq. m.
undivided property of plaintiffs and their co-heirs.
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13. Exhibit “H”- Deed of Real Estate Mortgage executed by Cecilio in favor of
defendant Alma dated Jan. 08, 2019.

Purpose: To show that Cecilio executed a Deed of Real Estate Mortgage (Deed)
mortgaging the 100 sq. m. property which is portion of the 977 sq. m undivided property
inherited by plaintiffs and their co-heirs in favor of defendant Alma. The Deed was notarized
by notary public Relina D. Arellano under Doc. No. 450; Page No. 91; Book No. 03; Series of
2017. This is the same Doc. No. 450; Page No. 91 ; Book No.03; Series 2019 dated Jan. 96,
2019 that notary public Relina D. Arellano used when she notarized the Deed of Mortgage of
Real Property executed by Cecilio in favor of defendant Gemma. We submit that the
notarization of the Deed of Mortgage of Real property in favor of defendant Gemma failed to
convert the aforesaid document into a public document as the notarial act was done in gross
violation of the Notarial Law. Thus, the same remained a private document.

14. Exhibit “I” – Letter of Atty. Barlin to Mr. Tito R. Migo, OIC PENR Officer dated
March 3, 2023

Purpose – To show that Atty. Barlin wrote to Mr. Tito Migo, OIC PENRO Officer,
Provincial Environment and Natural Resources Office, Balogo, Sorsogon City inquiring
whether Cecilio Barlin applied for Free Patent of Lot 140 located at Camcaman, Matnog,
Sorsogon.

15. Exhibit “J”- Reply letter of Ms. Marilou A. Bongon, Administrative Officer
I/Records Officer dated March 9, 2023

Purpose – To show that in reply to the letter of Atty, Barlin, Ms. Marilou A. Bongon,
Administrative Officer 1 Records Officer wrote that:

xxx

“This is to acknowledge receipt of your letter duly received on March 7,

2023 requesting for supporting documents relative to the Free Patent
Application of Mr. Cecilio Barlin for Lot No. 140, Cad 833, Matnog Cadastre,
located at Camcaman, Matnog, Sorsogon.

Perusal of records, please be informed that the above-described lot is

not covered by any public land application as of this date.”

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NAME OF WITNESSES AND SUMMARY OF RESPECTIVE TESTIMONIES

1. Gavino L. Barlin – He will testify based on his allegations in the complaint and the
documentary evidences .

2. Representative from the Provincial Assessor’s office- He/she will testify based on
the Archival Records of Lot 140 of Melecio Barlin.

3. Roselyn Barlin - She will testify that Lot 140 including the one Storey house
constructed thereon is the undivided property of his grandfather Melecio Barlin.

4. Representative from the DENR Sorsogon. He/she will testify that Lot 140 is
registered in the name of Melecio Barlin, and Cecilio Barlin did not apply for a free patent of
Lot 140.
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Plaintiffs reserve the right to present additional witnesses and documentary

evidence in the course of the trial.

STATEMENT OF POINTS OF LAW AND CITATION OF AUTHORITIES

1. Civil code on co-ownership

2. Mortgage law.

3. Notarial law

4. Code of Professional Responsibility

5. Spouses Benny and Normita Rol vs. Isabel Urdas Racho, G.R. No. 246096, January
13, 2021.

6. Supreme Court decision re: Miguel G. Padernal and Delfin R. Agcaoili Jr. rendered
by Justice Japar B. Dimaampao.

RESPECTFULLY SUBMITTED.

Quezon City, May 17, 2023.

EDUARDO E. DELA CRUZ

Counsel for the Plaintiffs
No. 20 Arguilla Street
San Lorenzo Village, Makati City
PTR No. 8536638, 01-06-21, Makati City
IBP O.R. 142748, 01-06-21, Pasig City
Roll of Attorney’s No. 25748
MCLE Compliance No. VI-000894
June 4, 2018
Email Add: ed_delacruzlaw@yahoo.copm.ph
Tel. No. 7-752-7117/Telefax 8-813-4043

and

GAVINO L. BARLIN
Collaborating Counsel
Rm. 204 Philippine College of Surgeons Building
992 EDSA, Quezon City 1105
Tel. Nos. (02) 928-1081
Roll No. 26754
MCLE Compliance VII-0027333
Issued on 3/28/2023 at Pasig City
PTR No. 3136176, 01/03/2023, Q.C.
IBP No. 295230, 02/28/2023
Sorsogon Chapter

Copy furnished:

ATTY. JOVEN G. LAURA

Counsel for Defendant Alma Escanilla Esteves
Block 17, Lot 8 Seabreeze Homes
Sorsogon City
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EXPLANATION

Due to lack of manpower, there being other equally important pleadings that have to
be served at the soonest possible time, the messenger could not accomplish personal
service thereof.

GAVINO L. BARLIN