REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

SEVENTH JUDICIAL REGION
CEBU CITY

ASIA UNITED BANK CORPORATION,

Plaintiff,
Case No. ______

- versus - For: Annulment of Extra-

Judicial Foreclosure Sale,
Cancellation of Certificate
of Foreclosure Sale, and
Damages
s
SHERIFF REYNALDO RULE ENLOPE,
and ATTY. MARCHEL C. SARNO,
Defendants.
x---------------------------------------------------x

COMPLAINT

Plaintiff, ASIA UNITED BANK CORPORATION, through counsel,

and unto this Honorable Court, respectfully deposes and states that:

1. Plaintiff is a banking corporation duly organized and existing under

Philippine laws, with principal office at Joy~Nostalg Center, No. 17 ADB
Avenue, Ortigas Center, Pasig City.

2. Defendant SHERIFF REYNALDO RULE ENLOPE (“Defendant

Enlope”), of legal age, Filipino, with given address at Unit 3 Capitol
Residences, Juana Osmeña, Kamputhaw, Cebu City, where he may be served
with summons and other court processes of this Honorable Court.

3. Defendant ATTY. MARCHEL C. SARNO (“Defendant Sarno”), of

legal age, Filipino, with given address at Rm. 104 WDC Building, Osmeña
Boulevard, Cebu City, where he may be served with summons and other court
processes of this Honorable Court.
 Complaint dated 29 September 2023
Page 2 of 11

Factual Antecedents of the Case

4. Plaintiff hereby respectfully avers the undisputed facts surrounding the

assailed 21 June 2023 Extra-Judicial Foreclosure Sale (“Foreclosure Sale”):

5. This case stemmed from the extra-judicial foreclosure case filed by

herein Plaintiff against Spouses Sinok Lee and Sungdeuk Woo in Asia United
Bank Corporation v. Sps. Sinok Lee, and Sungdeuk Woo, EJF-REM-9065-
CEB, due to non-payment of their loan obligations despite repeated demands.
Thus, on 21 June 2023, the subject properties with Transfer Certificate of
Titles Nos. 107-2021001545, 107-2020000729, 107-2020000730, 107-
2020000731 and 107-2021000659 – all under the Register of Deeds of Cebu
City were scheduled for Foreclosure Sale at the Regional Trial Court Cebu
City. Copies of the Transfer Certificates of Title all in the names of Spouses
Sinok Lee and Sungdeuk Woo are hereto attached as Exhibits “B”, “C”,
“D”, “E”, and “F” of Annex A of this Complaint.

6. In accordance with the Notice of Auction Sale dated 8 May 2023, the
sale was scheduled from 9:00AM and to be closed at 2:00PM on 21 June
2023. Copy of the Notice of Auction Sale dated 8 May 2023 is hereto attached
as Annex “C” of this Complaint.

7. Ms. Clarissa J. Tabel (“Ms. Tabel”), as the Plaintiff’s representative,

participated in the said bidding and submitted her sealed bid in a sealed
envelope at the office of the Regional Trial Court Office of the Clerk of Court
Cebu City to Defendant Enlope, the Sheriff-In-Charge of the Foreclosure sale
around 9:00AM. Copies of the Authorization of Ms. Tabel as AUB’s
authorized representative and AUB’s Bid Letter are hereto attached as
Exhibits “A” and “G” of Annex A of this Complaint.

8. However, at around 10:00AM or after an hour of staying at the auction

venue, Defendant Enlope asked Ms. Tabel to leave the sealed envelope, albeit
unattended, as Defendant Enlope will be out in the office to attend to some
tasks. Also, Defendant Enlope said that based on practice in conducting
auction sale, bidders are not required to stay up to the end of the auction
period. Defendant Enlope has also said that other banks would just leave the
bids and that he will just call them afterwards. Ms. Tabel, being a first-time
bidder for AUB, entrusted Defendant Enlope but she insisted and informed
Defendant Enlope that she will return at 2:00PM to witness the opening
of the bid and to secure a copy of the Minutes of the Foreclosure/Sheriff’s
Sale (the “Minutes”).

9. Thus, aware of the task to go to the auction venue, Ms. Tabel

proceeded, and while on her way to the auction venue to witness the opening
of the bid and thereafter secure the Minutes, Ms. Tabel suddenly received a
 Complaint dated 29 September 2023
Page 3 of 11

call from Defendant Enlope at around 1:54PM, and was told that there was
another bidder, and that he said that Plaintiff lost the bid as another bidder
has the highest bid. A copy of the photo screenshot of phone call history of
Ms. Tabel is hereto attached as Exhibit “H” of Annex A of this Complaint.
Further, a copy of the Affidavit of Authentication of Electronic Evidence is
hereto attached as Annex “E” of this Complaint.

10. When Ms. Tabel asked Defendant Enlope as to the reason why the bid
was opened despite her instruction that Ms. Tabel will attend the opening of
the bid, and insisted in securing a copy of the Minutes, Defendant Enlope said
that he is already on his way to serving another Summons and that Defendant
Enlope will already be out of court and can no longer give the copy of the
minutes. Instead, Ms. Tabel was asked by Defendant Enlope to return the
following day to get a copy of the Minutes.

11. Immediately thereafter on 22 June 2023, Ms. Tabel went to Defendant

Enlope to secure a copy of the Minutes but to Ms. Tabel’s surprise, she
received a type-written Minutes indicating therein that Defendant Sarno won
the bidding in the amount of PhP4,300,000.00 vis-à-vis, Plaintiff’s bid in the
amount of PhP4,285,608.00. A perusal of the Minutes would also reveal that
there was no indication that the bid of Defendant Sarno who has the highest
bid and to whom the sale was awarded, was made or submitted on time. The
said Minutes did not contain the signature of either Ms. Tabel or Defendant
Sarno as to the time when the bid was received or if Defendant Sarno was
indeed present during the auction sale. Copy of the Minutes of Sheriff’s Sales
is hereto attached as Exhibit “I” of Annex A of this Complaint.

11.1. Plaintiff strongly insists that this patent defiance of Defendant

Enlope to the clear instruction of the Ms. Tabel of her interest to
witness the opening of the bids, and failure to secure the signature of
the bidders and the unknown time of submission of the bid of
Defendant Sarno, now cast doubt as to the integrity of the result of the
said Foreclosure Sale.

11.2. Moreover, the remark of Defendant Enlope to Ms. Tabel that he

will leave the auction to attend to his other duties while the auction is
on-going is in itself irregular and his insistence for Ms. Tabel to leave
the auction place is unacceptable as no other personnel was tasked to
ensure the integrity of the bids except Defendant Enlope being the
Sheriff-in-Charge of the Foreclosure Sale.

11.3. Moreover, the Minutes in itself does not reflect what really
transpired during the auction sale as there were no signatures from both
bidders nor any witness to attest the truthfulness of the same.
 Complaint dated 29 September 2023
Page 4 of 11

12. Upon receipt of the said Minutes on 22 June 2023, Ms. Tabel has
immediately informed the Court of the irregularities through a letter dated 22
June 2023. A copy of said letter is attached herein as Exhibit “J” of Annex
A of this Complaint.

Grounds to Annul/Cancel the Foreclosure Sale

Request/Instruction of Auction Bidder Must Be Observed

13. Plaintiff respectfully posits that the request and/or instruction of an

auction bidder should be respected and observed.

13.1. Section 5 of Act No. 3135 provide as follows:

“Sec. 5. At any sale, the creditor, trustee, or other persons

authorized to act for the creditor, may participate in the
bidding and purchase under the same conditions as any other
bidder, unless the contrary has been expressly provided in the
mortgage or trust deed under which the sale is made.”

[Emphasis Supplied.]

13.2. Further, in the NOTICE TO PARTIES ON SHERIFF’S

PUBLIC AUCTION dated 8 May 2023 (“Notice”) issued by
Defendant Enlope, and sent to herein Plaintiff and to Spouses Sinok
Lee and Sungdeuk Woo, provides that:

xxx

“The mortgagee or your authorized representative is/are

requested to be present at said auction sale to be held at
the office of the undersigned, 3rd Floor Qimonda I.T.
Center, Don Sergio Osmeña Avenue, North Reclamation
Area, Cebu City on June 21, 2023 at 9:00 a.m. to 2:00
p.m., and on July 7, 2023, same time and place if
necessary.

Failure of the mortgagee/plaintiff or representative to

attend on said sale without previously notifying the
Office of the Clerk of Court & Ex-Officio Sheriff, OCC,
Cebu City of his/her/they are present therein, shall be
construed as a waiver of his/her/their rights to be present
and bid and the auction sale shall be held as scheduled.”
 Complaint dated 29 September 2023
Page 5 of 11

xxx

[Emphasis Supplied.]

Copy of the said Notice is hereto attached as Annex “F” of this

Complaint.

13.3. First, Plaintiff respectfully manifests that Section 5 of Act No.

3135 is clear as it explicitly allows the creditor, trustee, or other
persons authorized to act for the creditor to participate in the bidding
and purchase under the same conditions as any other bidder.

13.4. Further, in the Notice, the quoted portion is also clear and
instructive – that Defendant Enlope even requested the presence of the
herein Plaintiff and Spouses Sinok Lee and Sungdeuk Woo in the
assailed Foreclosure Sale.

13.5. Interestingly and in accordance with Section 5 of Act No. 3135

and the Notice issued by Defendant Enlope, Ms. Tabel stated in her
Judicial Affidavit that she will participate by insisting to Defendant
Enlope that she will go back to the Foreclosure Sale before the time
deadline of 2:00PM. But despite the explicit request and/or instruction
of Ms. Tabel to be present and witness the Foreclosure Sale, Defendant
Enlope blatantly ignored it and proceeded with the opening of the bids
without Ms. Tabel, and in the absence of any witness.

13.6. The reasonable request of Ms. Tabel to participate in the

bidding, being the authorized representative of the Plaintiff should
have not been taken lightly by Defendant Enlope as the law granted the
creditor or other person authorized to act for the creditor, as the creditor
may so choose, the right to be present and participate in the bidding.
Further, it was Defendant Enlope himself that requested the presence
of the herein Plaintiff in his issued Notice. This act of Defendant
Enlope clearly deprived the Plaintiff of its right to be present in the
assailed Foreclosure Sale.

13.7. With all due respect, Plaintiff respectfully submits that failure of
Defendant Enlope to respect and accord courtesy to the reasonable
request of Ms. Tabel because of the injudicious reasons that, (i)
Defendant Enlope will be out in the office to attend some tasks, (ii) it
is not being required that bidder would stay up to the end of the auction
period, (iii) that other banks would just leave the bids and that he will
just call them afterwards run contrary to his explicit request in the
Notice requesting the presence of the parties and the clear language of
 Complaint dated 29 September 2023
Page 6 of 11

the law allowing a bidder, trustee, creditor or the creditor’s

representative to participate in the bidding. Here, Ms. Tabel insisted to
participate by instructing Defendant Enlope that she will be present in
the Foreclosure Sale. Further, as the Sheriff-in-Charge, the reasons
given by Defendant Enlope only show his divided attention and meager
amount of seriousness he puts in supervising the Foreclosure Sale.

13.8. To repeat, Defendant Enlope has already opened the bids

without the presence of, and despite the instruction of Ms. Tabel that
she will be attending the opening of the bid. This action of Defendant
Enlope denied Plaintiff, through Ms. Tabel, the right to witness the
whole auction sale. Hence, Plaintiff believes that Defendant Enlope
failed to guaranty that the sealed bid of Plaintiff was not left unopened
to any third party. To bolster this claim of the Plaintiff, perusing the
Minutes would show that there was no single witness who saw that
both sealed bids were opened simultaneously.

No Indication that the Bid of Defendant Sarno

was Received on Time

14. Plaintiff perused the records of the questioned Foreclosure Sale and
found out that while the bid of Plaintiff was received by Defendant Enlope as
shown by the stamped mark on the bid indicating that Plaintiff’s bid was
received at 9:10AM in the morning of 21 June 2023, nothing can be seen in
the bid submitted by Defendant Sarno or any indication thereto that said bid
was in fact received by Defendant Enlope before the time to bid closed, or
that said bid had been submitted at all on 21 June 2023. Plaintiff strongly
believes that this another act of Defendant Enlope again casts doubt on the
validity of the result of the Foreclosure Sale. A copy of the bid letter of
Defendant Sarno is hereto attached as Annex “D” of this Complaint.

The Five (5) Day Period to Pay the Bid Price

Upon Notice is Mandatory

15. The Foreclosure Sale that was supervised by Defendant Enlope took
place on 21 June 2023. Plaintiff respectfully submits that Section 5 of OCA
Circular No. 7-2202 (the “Circular”) specifically provides that the winning
bidder shall pay in cash or through manager’s check, in Philippine Currency,
within five (5) days from notice, to wit:

“Section 5
Conduct of the extra-judicial Foreclosure Sale –
The bidding shall be made through sealed bids which must be
submitted to the Sheriff who shall conduct the sale between the
 Complaint dated 29 September 2023
Page 7 of 11

hours of 9 a.m. and 4 p.m. of the date of the auction (Act 3135,
Sec. 4). The property mortgaged shall be awarded to the party
submitting the highest bid and, in case of a tie, an open bidding
shall be conducted between the highest bidders. Payments of the
winning bid shall be made either in cash or in manager’s check,
in Philippine currency, within five (5) days from notice.”

[Emphasis Supplied.]

15.1. Section 5 of OCA Circular No. 7-2023 is clear and

unambiguous. For emphasis, the Circular used the word “shall”
indicating that the payment within five (5) days from notice within the
given period is mandatory and not permissive. In a case1 decided by
the Supreme Court, it states that:

Jurisprudence and statutory construction teach us that the

word "shall" connotes mandatory character; it indicates
a word of command, and one which has always or which
must be given a compulsory meaning, and it is generally
imperative or mandatory in nature.

[Emphasis Supplied]

15.2. In his sworn Comment dated 21 July 2023, Defendant Enlope in

his own words, admitted the following:

“26. Last but not the least, as winning bidder, albeit

being called on 21 June 2023 regarding the outcome of
the auction sale, Atty. Marchel C. Sarno was only able to
receive a personal copy of the of the Sheriff’s Minutes
and the Demand for Compliance of Sheriff’s Auction
Sale on 26 July 2023. Thereafter, on 27 July 2023, Atty.
Marchel C. Sarno complied with the demand and
deposited the cash equivalent to his bid together with the
commission and other relevant payables. The receipt is
seen in his document as acknowledged by Atty. Marchel C.
Sarno’s representative.”

[Emphasis Supplied.]

1UCPB General Insurance Company, Inc. v. Hughes Electronics Corporation G.R. No. 190385. 16
November 2016.
 Complaint dated 29 September 2023
Page 8 of 11

15.3. Plaintiff respectfully avers that the insinuation of Defendant

Enlope that since Defendant Sarno only received the hard copy of the
notice on 26 June 2023 despite being notified and informed that he won
the Foreclosure sale on 21 June 2023 the period to pay will only start to
run on 26 June 2023 and not on 21 June 2023 is patently wrong and
without legal basis. The Circular states that a notice is required before
the period of payment which is within five (5) days from notice starts
to commence. Plaintiff respectfully emphasizes that careful reading of
the Circular does not indicate the required form of notice. What is
important is that a notice should be given to the winning bidder
informing the latter about the result of the auction, that the bidder
won the auction sale, nothing else.

15.4. Corollary thereto, the Supreme Court had the occasion to

discuss, in a case2 , the rule on Statutory Construction known as the
“Plain Meaning Rule”, to wit:

“A cardinal rule in statutory construction is that when the

law is clear and free from any doubt or ambiguity, there is
no room for construction or interpretation. There is only
room for application. As the provisions are clear, plain,
and free from ambiguity, they must be given their literal
meaning and applied without attempted interpretation.
This is what is known as the plain meaning rule, as
expressed in the maxim, verba legis non est recedendum,
or from the words of a statute there should be no
departure.”

[Citations Omitted. Emphasis Supplied.]

15.5. Defendant Enlope admitted in his Comment that Defendant

Sarno was notified when Defendant Enlope called Defendant Sarno on
21 June 2023 right after the auction sale informing him as the winning
bidder. Plaintiff respectfully argues that the rule on Foreclosure Sale is
clear and unambiguous as to the notice being required. OCA Circular
No. 7-2022 only requires that the winning bidder be notified and after
being informed or notified, the winning bidder is required to pay within
five (5) days from notice. In this case, the winning bidder, Defendant
Sarno was notified on 21 June 2023 of the result of the bid informing
him that he won the bid. Thus, Defendant Sarno is required under Act
No. 3135 and under OCA Circular No. 7-2022 to pay in cash or through
Manager’s Check at the latest, which should be on 26 June 2023 and
NOT on 27 July 2023. Thus, Plaintiff respectfully and strongly believes
2
James Arthur T. Dubongco, Provincial Agrarian Reform Program Officer II of Department of Agrarian
Reform Provincial Office-Cavite In Representation of Darpo-Cavite And All Its Officials And Employees
v. Commission on Audit. G.R. No. 237813. 05 March 2019.
 Complaint dated 29 September 2023
Page 9 of 11

that the Defendants failed to observe the mandatory requirement of the

Circular and the law requiring Defendant Sarno to pay within five (5)
days from notice.

Claim for Damages

16. By reason of the unlawful, improper and irregular conduct of the 21

June 2023 Foreclosure Sale of Subject Properties, Plaintiff was constrained
to seek redress from this Honorable Court and incur expenses amounting to
at least Two Hundred Thousand Pesos (PhP200,000.00) representing
attorney’s fees and litigation expenses, aside from costs of suit. In further
support hereof, the Judicial Affidavit of Ms. Clarissa J. Tabel, Authorized
Representative of Plaintiff is attached hereto as Annex “A”.

17. In sum, Plaintiff respectfully avers that since the Foreclosure Sale
involved considerable number and amount of properties, any prudent man
should have conducted and supervised the Foreclosure Sale beyond reproach
by following the instructions and the conduct of the Foreclosure Sale to the
letter so as not to cast even a scintilla of a doubt, and without prejudicing the
interest of any party. In this case, the act of Defendant Enlope clearly shows
that the Foreclosure Sale was railroaded, to the prejudice of herein Plaintiff.

PRAYER

WHEREFORE, premises considered and in the interest of justice,

Plaintiff most respectfully prayed of this Honorable Court that judgment be
rendered in its favor and against the Defendants, as follows:

1. ANNULLING/CANCELLING the EXTRAJUDICIAL

FORECLOSURE SALE, AND the CERTIFICATE OF
FORECLOSURE SALE of Transfer Certificates of Title Nos. 107-
2021001545, 107-2020000729, 107-2020000730, 107-2020000731
and 107-2021000659 in favor of Defendant Sarno;

2. ORDERING Defendants to pay attorney’s fee in the amount of

Two Hundred Thousand Pesos (PhP200,000.00), litigation expenses
and the cost of suit.

Plaintiff further prays for such other reliefs and remedies deemed just
and proper under the premises.

Respectfully submitted.

Pasig City for Cebu City, Philippines. 29 September 2023.

 Complaint dated 29 September 2023
Page 10 of 11

JUMEN G. TAMAYO
Counsel for Plaintiff
31st Floor, Joy~Nostalg Center
17 ADB Avenue, Ortigas Center, Pasig City, Metro Manila
PTR No.15282870; 03 January 2023; Isabela
IBP No. 266693; 04 January 2023; Pasig City
Roll of Attorneys No. 84063
MCLE Compliance No: VIII-0001797 (valid until April 14, 2028)
 Complaint dated 29 September 2023
Page 11 of 11

VERIFICATION AND CERTIFICATION

I, CLARISSA J. TABEL, Filipino, of legal age, with office address at Asia United
Bank Corporation, Joy~Nolstag Center, 17 ADB Avenue, Ortigas Center, Pasig City,
Metro Manila, after having been duly sworn in accordance with law, hereby state that:

1. I am the authorized representative of Asia United Bank Corporation (“AUB”), the

plaintiff in this Complaint;

2. I have been authorized by the Board of Directors of AUB to cause the preparation
and filing of this Complaint for and on behalf of AUB, as evidenced by the Secretary’s
Certificate, a copy of which is attached hereto and made an integral part hereof as Annex
B;

3. I have read all the allegations contained in this Complaint and the same are true
and correct based on my personal knowledge and/or authentic records on hand;

4. This Complaint is not filed to harass, cause unnecessary delay, or needlessly

increase the cost of litigation;

5. The factual allegations in this Complaint have evidentiary support or, if

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

6. AUB has not commenced any other action or proceeding involving the same issues
in the Supreme Court, Court of Appeals, or any other tribunal or agency; to the best of my
knowledge and no such action or proceeding is pending before the Supreme Court, Court
of Appeals, or any tribunal or agency; if there is such action or proceeding which is either
pending or terminated, I must state the status thereof. If I should hereafter learn that a
similar action or proceeding has been filed or is pending before the Supreme Court, Court
of Appeals, or any tribunal or agency, I undertake to report that fact within five (5) days
therefrom to this Honorable Court.

CLARISSA J. TABEL
Affiant

SUBSCRIBED AND SWORN to before me this ___________ in

________________________________, affiant exhibiting to me her
___________________________.

Doc. No. ___;

Page No. ___;
Book No. ___;
Series of 2023.