duano.accionpubliciana.complaint (1)

8/18/2019 Duano.accionPubliciana.complaint (1)

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REPUBLIC OF THE PHILIPPINES

National Capital Judicial Region

REGIONAL TRIAL COURT

Valenzuela City

Branch ______

SPOUSES GREGORIO and

TIFFANY DUANO,

Plaintiffs,

-versus- CIVIL CASE NO.______

For: Recovery of Possession

with Damages

KMI Kapisanan Ng Mamamayang Ipit,

AND ALL OTHER PERSONS

CLAIMING POSSESSION UNDER

IT,Defendants.

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

COMPLAINT

PLAINTIFFS SPOUSES GREGORIO AND TIFFANY

DUANO (Plaintiffs Spouses for brevity), by counsel and unto

this Honorable Court, most respectfully state, that:

1. Plaintiffs Spouses are both Filipinos, married, of legal

ages and with residence and postal address at No. 423

Yakal Street, Midtown Executive Homes, United

Nations Avenue, City of Manila, where they may be

served with notices and other processes of the Court;

2.Defendant KMI Kapisanan ng Mamayang Ipit Inc.

(defendant association for brevity), is a domestic

association, duly organized and existing under and by

virtue of the laws of the Philippines with principal

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office at East Service Road, Lawang Bato, Valenzuela

City (Subject Property for brevity), where it may be

served with summons, notices and other processes of

the Court;3.Plaintiff Spouses are the legal and absolute owners of

the aforesaid subject property, consisting of a total

area of 3, 426.60 square meters, more or less, covered

and described in Transfer Certificate of Title No.

V-961841, having purchased the same from

Metropolitan Bank & Trust Company on April 13,

2012, as evidenced by a duly executed and notarized

Deed of Absolute Sale2. The assessed value of the

property is TWO MILLION FIVE HUNDRED SIXTY

NINE THOUSAND NINE HUNDRED FIFTY PESOS

(P 2,569,000.00), copy of the Certified True Copy of

Tax Declaration is hereto attached.

4.Recognizing further Plaintiff Spouses’ ownership with

concomitant right of possession over the Subject

Property, Metropolitan Bank & Trust Company issued

a Turn-Over letter dated April 16, 20123 in the

former’s favor over the said Subject Property;

5.In April 2012, or immediately after the transfer of the

Subject Property to plaintiffs Spouses, the latter

discovered, upon ocular inspection thereon, that the

same was being occupied by the herein named

defendant association and is using the same as their

principal office. In fact, members of the defendant

association have built houses on the subject property

and are using the same as their residence. At that

instance, Plaintiff Spouses informed said defendants

that they are the new owners of the Subject Property;

1Copy is hereto attached as “ANNEXES A to A-1”

2Copy is hereto attached as “ANNEXES B, B-1, B-2”

3Copy is hereto attached as “ANNEX C”

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6. On 26 September 2012 Plaintiffs Spouses apprised

said defendants that they will have to repossess the

Subject Property as they are in dire need to utilize the

same for the benefit of their family, thus theydemanded defendant to turn-over possession of the

same. Defendant, however, chose to ignore Plaintiffs

Spouses;

7. Thus, on 26 September 2012, Plaintiffs Spouses

initiated a complaint against said defendants before

Purok 1, Zone 3, Barangay 12, Lawang Bato,

Valenzuela City. There being no amicable settlementhaving been arrived at during the Barangay

conciliation despite series of hearings thereon, a

Pagpapatunay Upang Makapagsampa Ng Usapin4

was issued on 06 November 2012;

8.Plaintiffs Spouses also sent Defendant aLetter dated

01 December 20125, addressed to its President Irene

Manalangkay and to the members of the Defendant which was duly received on 11 December 20126

formally demanding them in writing to vacate the

Subject Property. Despite due receipt of said Notice the

Defendant unlawfully refused and still continuously

refuse to immediately vacate and peacefully turn-over

possession of the Subject Property to Plaintiffs

Spouses, to the latter’s continuing detriment and

prejudice;

9. The controversy reached the City Government of

Valenzuela and prevailed upon the parties to further

explore the possibility of an amicable settlement on the

matter. Exploratory discussions have had between the

parties upon the intervention of the City Government

of Valenzuela, through the Office of the City Mayor, but

4 Copy is hereto attached as “ANNEX D”

5Copy is hereto attached as “ANNEX E.”

6Copies of the Registry Receipt dated 03 December 2012 and the front

and dorsal portions of the Registry Return Card are hereto attached as

“ANNEX F” and “ANNEXES G to G-1 respecti!ely

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which discussions, ultimately resulted to failed

settlement;

10.Consequently, District 1, Zone 3, Barangay 12,Lawang Bato, Valenzuela, issued a Certification7,

attesting to the failed settlement between the parties,

the interventions of the City Government of Valenzuela

for the parties to amicably settle the controversy and

the renewal and reconfirmation of the authority to file

action in court;

11.Hence, this Complaint;

CAUSES OF ACTION

A.ACCION PUBLICIANA

13. In the case of Vda. De Aguilar vs. Spouses Alfaro8,

the Supreme Court discussed the nature and purpose of

accion publiciana, thus: “ Also known as accion plenaria

de possession, accion publiciana is an ordinary civil

proceeding to determine the better right of possession

of realty independently of title. It refers to an

ejectment suit filed after the expiration of one year

from the accrual of the cause of action or from the

unlawful withholding of possession of the realty.

14. “Accion Publiciana is the plenary action to

recover the right of possession which should be brought

when the dispossession lasted for more than one year. It

is an ordinary civil proceeding to determine the better

right of possession of realty independently of title. In

other words, if at the time of the filing of the complaint

more than one year had elapsed since defendant had

turned plaintiff out of possession or defendant’s

"Copy is hereto attached as “ANNEX E”

# $%R% &o% 164402 'uly 5 2010

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possession had become illegal, the action will be, not

one of forcible entry or illegal detainer, but an accion

publiciana.”9

1.Defendants’ possession

by way of tolerance

terminated when

Plaintiffs Spouses

apprised them of the

latter’s need to repossess

the Subject Property anddemanded that they

should accordingly turn-

over possession thereof

to Plaintiffs Spouses:

14.Defendant’s possession of the Subject Property was

initially tolerated by Plaintiffs Spouses, when, upon the

latter’s inspection thereof in April 2012, immediately after

its transfer of ownership to them by Metropolitan Bank &

Trust Company, the Plaintiffs Spouses discovered that the

same was being occupied by the herein defendant

association and its members, as in fact, they have built

structures and improvements thereon, and accordingly,

introduced themselves as new owners thereof;

15. At that instance and for several months thereafter, saiddefendant enjoyed possession over the subject property by

mere tolerance;

16. However, such possession by way of tolerance

terminated when on 26 September 2012, Plaintiffs Spouses

apprised them of their dire need to repossess the Subject

Property and demanded that they should accordinglypeacefully turn-over possession thereof to Plaintiff Spouses;

( Ci!il )rocedure *+ Restatement for the ,ar- Riano p% "20% Citing the case of .alde/

!s% Court of +ppeals $%R% &o% 132424 ay 2 2006%

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17. In point is Roxas v. Court of Appeals, et.al.10, viz:

“It bears stressing that possession by

tolerance is lawful but such possession

becomes unlawful when the possessor by

tolerance refuses to vacate upon demand

made by the owner.”

18. Plaintiffs Spouses, being the true and absolute

owners of the Subject Property, are clothed with rights to

demand defendant to vacate the same;

19. Thus, said defendant’s possession by tolerance

ceased to be as such and lawful when it unreasonably

refused to vacate the same despite Plaintiffs Spouses’

demand in 26 September 2012 for it to immediately turn-

over possession thereof to them;

2.Notice is given todefendants to surrender

possession of the

Subject Property:

20. Plaintiffs Spouses sent defendant aLetter dated 01

December 201211, which it duly received on 11 December

2012,12 thru its President Irene Manalangkay demanding

them to vacate the Subject Property;

21. Instead of heeding this lawful demand, and even

after failed settlement during the mandatory Barangay

conciliation proceedings and in the conferences at the City

Government of Valenzuela, through the Office of the Mayor,

defendant held on to the Subject Property. Hence, Plaintiffs

Spouses were constrained to send another formalNotice of

Final Demand to Vacate dated 05 September 2013.13

10 $%R% &o% 13#(55 ctober 2( 2002

11 Copy is hereto attached as “ANNEX E”

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Defendant duly received its respective copy of said Notice on

07 September 2013 thru its President Irene Manalangkay;

22. Despite repeated demands, however, defendantcontinued in their unlawful and unjustified deprivation of

Plaintiffs Spouses’ possession of the Subject Property to the

latter’s continuing damage and detriment;

3.Dispossession has

lasted for more than

one (1) year from the

accrual of the cause

of action or from the

unlawful withholding

of realty.

23. “Accion publiciana is the plenary action to

recover the right of possession when dispossession has

lasted for more than one year.”14

24. In the case of Vda. De Aguilar vs. Alfaro15, it was

held that:

“Also known as accion plenaria de

possession, Accion Publiciana is an

ordinary civil proceeding to determine

the better right of possession of realtyindependently of title. It refers to an

ejectment suit filed after the expiration

of one year from the accrual of the

cause of action or from the unlawful

withholding of possession of the

realty.”

13

14 eirs of ernando .in/ons !s% Court of +ppeals et%al $%R% &o% 111(15 eptember

30 1(((

15 $%R% o% 164402 'uly 5 2010%

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25. Applying the foregoing jurisprudential

pronouncements in this case, the defendant’s possession of

the subject property became unlawful when they received

from Plaintiffs Spouses their formal letter of last demand to vacate the Subject Property and pay reasonable rental fees

on 07 September 2013 and still refused and continues to

refuse up until the filing of this complaint, to vacate the

Subject Property and turn it over peacefully to the Plaintiffs

Spouses.

26. Prescinding from above, the above-named defendant

and all other persons claiming possession under it, should be ordered to peacefully, voluntarily and immediately

VACATE the Subject Property and TURN-OVER the

possession thereof to Plaintiffs Spouses;

B.RENTAL FEES, INTERESTS, ATTORNEY’S FEES AND

COSTS OF SUIT

27. Due to defendant’s obstinate and unlawful refusal to

vacate the Subject Property, Plaintiffs Spouses have

suffered and shall continue to suffer actual losses resulting

from undue deprivation of the use and enjoyment of the

economic viability of the property;

28. As such, the above-named defendant and all other

persons claiming possession under it should be ordered to

pay Plaintiff Spouses monthly rental fee in the amount of

Three Thousand Pesos (Php 3,000.00) with interest at the

prevailing legal rate, for the reasonable use of said property,

to be computed from April 2012, until the above-named

defendant and all persons claiming possession under them,

peacefully vacate the Subject Property;

29. Since Plaintiffs Spouses were compelled to engagethe services of a counsel to protect their interests and

enforce their rights over the Subject Property, defendants

should be adjudged to pay Plaintiffs Spouses attorney’s fees

in the amount of TWENTY THOUSAND PESOS

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(Php 20,000.00), appearance fee in the amount of THREE

THOUSAND PESOS (Php 3,000.00) per hearing, plus costs

of suit and litigation.

PRAYER

WHEREFORE, premises considered, it is most

respectfully prayed of this Honorable Court that judgment

be rendered in favor of Plaintiffs Spouses, as follows:

1.Ordering defendant and all persons claiming

possession under it, to peacefully, voluntarily and

immediately VACATE the Subject Property and TURN-

OVER possession thereof to Plaintiffs Spouses;

2.OrderingEACH defendant to pay Plaintiffs Spouses

monthly rental fee in the amount of Three Thousand

Pesos (Php 3,000.00), with interest at the prevailing

legal rate, from April 2012, until the above-named

defendant and all persons claiming possession under

them to peacefully vacate the Subject Property;

3.Ordering defendants to pay Plaintiffs Spouses the

amount of TWENTY THOUSAND PESOS

(Php 20,000.00) as attorney’s fees and THREE

THOUSAND PESOS (Php 3,000.00), as appearance

fee per hearing;

4.Ordering defendants to pay Plaintiffs Spouses cost of

suit and other litigation expenses.

Other reliefs as are just and equitable under the

premises are equally prayed for.

Respectfully submitted.

____ day of ______ 2014, Valenzuela City, Philippines.

CALOCHAN & ASSOCIATES

(Counsel for the Spouses Plaintiffs)

No.35 MacArthur Highway,

Marulas, Valenzuela City

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By:

ALFREDO B. CALOCHANPTR No. VC 2744138; 17 Jan 14; Valenzuela City

IBP 949747; 02 Jan14; Manila III

MCLE Compliance No. IV-0011388

Roll No. 11746

REPUBLIC OF THE PHILIPPINES)CITY OF ____________________ ) S.S.

VERIFICATION & CERTIFICATION OF NON-FORUM HOPPING

WE, SPOUSES GREGORIO and TIFFANY DUANO, Filipinos,of legal age, i!" a##$ess lo%a!e# a! No. &'( Yaal S!$ee!, *i#!onE+e%!i-e Hoes, Uni!e# Na!ions /-ene, Ci!0 of *anila, af!e$"a-ing 1een so$n !o in a%%o$#an%e i!" la, "e$e10 #epose an#s!a!e, !"a!2

3. We a$e !"e Coplainan!s in !"e a1o-e %ap!ione# %ase4

' We "a-e %ase# !"e filing an# p$epa$a!ion of !"e fo$egoingComplaint "i%" e "a-e fll0 $ea# an# n#e$s!oo#4

(. We "e$e10 affi$ !"a! !"e fa%!al allega!ions %on!aine# in !"efo$egoing Complaint a$e !$e an# %o$$e%! 1ase# on 0 on pe$sonalnole#ge an# 1ase# on a!"en!i% #o%en!s an# $e%o$#s4

&. T"a! e "a-e no! %oen%e# "e$e!ofo$e an0 o!"e$ a%!ion o$p$o%ee#ing, o$ file# an0 %lai in-ol-ing !"e sae isses in !"eSp$ee Co$!, Co$! of /ppeals, o$ an0 #i-ision !"e$eof, o$ in an0%o$!, !$i1nal o$ agen%0. To !"e 1es! of o$ nole#ge, no s%" o!"e$ a%!ion, p$o%ee#ing, o$ %lai is pen#ing 1efo$e !"e Sp$ee Co$!,Co$! of /ppeals, o$ an0 #i-ision !"e$eof, o$ in an0 %o$!, !$i1nal, o$agen%04

5. If e s"ol# "e$eaf!e$ lea$n !"a! a siila$ a%!ion, p$o%ee#ingo$ %lai "as 1een file# o$ is pen#ing 1efo$e !"e Sp$ee Co$!, Co$!of /ppeals, o$ an0 #i-ision !"e$eof, o$ in an0 %o$!, !$i1nal, o$agen%0, I n#e$!ae !o p$op!l0 info$ !"is Hono$a1le Co$! of !"efa%! i!"in fi-e 657 #a0s f$o no!i%e !"e$eof.

Affiant further sayeth naught.

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8ONE THIS ____ #a0 of___________________, in _________________, P"ilippines.

GREGORIO DUANO TIFFANY DUANO

Affiant Affiant

SUBSCRIBE8 /N8 SWORN TO 1efo$e e !"is ______ #a0 of ______ , 10 affian!s, "o a$e 1o!" pe$sonall0 non !o !"en#e$signe# an# e+"i1i!e# !o e !"ei$ %ope!en! p$oofs of i#en!i!0$i!!en 1elo !"ei$ $espe%!i-e naes.

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