Under P.D. No. 957 and other existing related housing laws, cases filed by homeowners and their associations against their subdivision or condominium developers must be filed with the Housing and Land Use Regulatory Board (HLURB). The decision of the Housing and Land Use Arbiter may be appealed to the HLURB En Banc. Under the old rules, from the HLURB En Banc, a party may appeal to the Office of the President (OP). The appeal mode has been amended by the new 2010 Magna Carta of Homeowners (see Section 20, R.A. No. 9904). From the HLURB en Banc, a party may now appeal to the Court of appeals under Rule 43 of the Rules of Court via petition for review (questions of fact and law). From the CA, a party may go up to the Supreme Court under Rule 45 of the Rules of Court via a petition for review on certiorari (purely legal issues). For legal research purposes, may I share a reply memorandum I had filed with the Office of the President (under the old HLURB and OP appeal rules). Focus on the counter legal discussion part of the pleading (issues of estoppel, frivolous appeal, respect for the primary jurisdiction of quasi-judicial administrative bodies).
REPLY MEMORANDUM
THE COMPLAINANTS-APPELLEES, by counsel, respectfully state:
I. PREFATORY STATEMENT
For the information of this Honorable Office, as the case records will bear out (which records it is hoped the Housing and Land Use Regulatory Board [HLURB} has already forwarded to this Honorable Office), it will be noted that prior to the filing of the instant appeal by the appellants with this Honorable Office, the appellees had previously filed with the Housing and Land Use Regulatory Board (HLURB) an “AMENDED COMPLIANCE AND MOTION FOR CLARIFICATION (In Re: NOTICE OF RESOLUTION, Dated March 1, 2010)”, dated March 20, 2010, wherein the appellees alleged, thus:
X x x.
1. By way of compliance with the last paragraph of the Notice of Resolution, dated March 1, 2010, of this Honorable Board, the undersigned counsel for the complainants respectfully manifests that on Mach 15, 2010 he received from this Honorable Board via registered mail a photocopy of its aforecited Notice of Resolution, together with a photocopy the Resolution itself, dated February 11, 2010.
2. The aforecited Resolution (a) denied the Motions For Reconsideration filed by the parties to the instant case and (b) affirmed the DECISION, dated February 15, 1996, of this Honorable Board (typed as February 16, 1996 in the dispositive part of the said Resolution).
3. The complainants respectfully wish to CLARIFY certain parts of the dispositive portion of the aforementioned Resolution, dated February 11, 2010.
4. Paragraph 1 of the dispositive portion of the affirmed Decision, dated February 15, 1996, ordered the private respondents xxx and xxx Corp. “to fully develop the subdivision project within ninety (90) days from finality of (the) Decision and thereafter a fine of P1,000.00 for each day of failure to develop the same”.
5. The complainants humbly beg the kind indulgence of this Honorable Board in respect of aforementioned Par. 1 of the dispositive portion of the said Decision.
Correct us if we are wrong but the aforecited Decision does not seem to clearly specify the period during which the said private respondents’ duty to fully develop the subdivision must be completed.
It seems to merely specify the date on which the said private respondents must commence to perform such duty (i.e., within 90 days from finality of the Decision).
For this reason, the complainants respectfully seek the kind clarification of this Honorable Board to facilitate and systematize the execution stage of the said Decision.
6. Further, Paragraph 2 of the aforecited affirmed Decision ordered the complainants “to immediately resume payments of amortizations with interest and penalty charges to the NHMFC pursuant to the Loan and Mortgage Agreements upon finality of this decision”.
7. The complainants humbly beg the kind indulgence of this Honorable Board in respect of aforementioned Par. 2 of the dispositive portion of the said Decision.
Correct us if we are wrong but the aforecited Decision does not seem to clearly specify the date on which the computation of the individual interests and penalties of the complainants should commence.
The said Par. 2 orders the resumption of the payment of the amortizations upon finality of the said Decision but it does not similarly specify that the computation of their individual interests and penalties should likewise commence only upon such finality date.
For this reason, the complainants respectfully seek the kind clarification of this Honorable Board to facilitate and systematize the execution stage of the said Decision.
8. Paragraph 3 of the aforecited Decision “declar(ed) the NHMFC’s right to collect amortization payments from complainants and to foreclose the mortgages upon failure of the latter to pay within the period pursuant to the Loan and Mortgage Agreement(s)”.
Par. 3 does not specify that the right of the NHMFC to collect the amortizations from the complainants shall commence only upon finality of the said Decision (to harmonize with the clear language and intent of Par. 2 of the said Decision which ordered the complainants to resume payments of their amortizations upon finality of the said Decision).
Further, Par. 3 does not specify that the duty of the complainants to resume and complete the payments of their individual amortizations must be specifically performed within the balance of their individual amortization periods as stipulated in their individual Loan and Mortgage Agreements (i.e., which balance must be reckoned from the time of finality of the aforementioned Decision and Resolution and not from the time when the complainants validly suspended their individual payments sometime in 1993 due to the confirmed violations of the private respondents and pursuant to existing housing laws and jurisprudence). Otherwise, if we count the balance of the period from 1993, when the complainants validly suspended their amortization due to the violations of the private respondents, such a computation would be unfair, unjust, illegal and unconscionable and not in harmony with the intent and spirit of the said Decision and Resolution..
9. This motion for clarification is being filed because of the fears that have been created in the minds of the complainants by various official communications received by them since last year via registered mail from the Asset Management
Department of the NHMFC stating that the NHMC had allegedly foreclosed the housing units of the complainants for alleged nonpayment of their amortizations, without regard for the legal pendency of the instant case before this Honorable Board.
10. The NHMC and the HIGC (as public respondents in the instant case) have not been formally furnished by this Honorable Board with official copies of the Decision, dated February 15, 1996, and the Resolution, dated February 11, 2010, of this Honorable Board to enlighten, clarify and correct the misconception and lack of knowledge of the Asset Management Department of the NHMFC about the pendency of the instant case and the legal effects and consequences of the said Decision and Resolution insofar as the legal rights and interests of the complainants in their individual housing units are concerned. For this reason, there is a need for this Honorable Board to furnish the NHMFC and the HIGC with official copies of the aforementioned Decision and Resolution.
X x xx.
On the basis of the foregoing motion filed with the HLURB by the appellees, they prayed before the HLURB, in the interest of justice and in the interest of facilitating and systematizing the future execution stage of the instant case, as follows:
“(a) That the Decision, dated February 15, 1996, which was affirmed by the Resolution, dated February 11, 2010, be CLARIFIED based on the foregoing clarificatory questions and issues raised in the body of this motion; and
(b) That the public respondents NHMFC and the HIGC be furnished with official copies of the aforementioned Decision and Resolution of this Honorable Board as well as the future Resolution of this Honorable Board in respect of this clarificatory motion in order to reiterate in the minds of the said public respondents the fact of the pendency of the instant case and in order to clarify with the said public respondents the legal effects and consequences of the pendency of the instant case and of the final resolution thereof insofar as the powers and jurisdictions of the said public respondents and insofar as the legal rights and interests of the complainants in relation to their individual housing units are concerned .”
Further, the appellees, thru counsel, had previously written the HLURB, prior to the commencement by the appellants of their instant appeal, to respectfully rebut the inaccurate and misleading allegations contained in a letter, dated July 24, 2009, of XXX addressed to the HLURB in connection with this pending case, a copy of which the association of the appellees secured from the HLURB in the course of their follow-up of the status of the pending case. In their said letter, the appellees informed the HLURB, thus:
X x x.
1. It notes the death of the founder and former president of the respondent XXX in the person of XXX, as alleged in the aforecited letter of his son xxx, the new president of the said family corporation. It must be noted, however, that under the Corporate Code, the death of a corporate officer or director has no bearing as to the civil liabilities of the corporation itself, the latter having a separate juridical or legal personality from its stockholders, officers, and directors.
2. Your good office had officially conducted in 2009 two (2) follow-up ocular inspections of the XXX Subdivision in XXX, Rizal, in the presence of the officers of the homeowners association of the mass complainants and a representative of the subdivision developer,XXX. The official ocular inspection reports submitted by your authorized personnel have affirmed the previously established fact that, from the very start, the subdivision developer had failed to fully develop the subdivision and that it had failed to comply with the approved construction standards and other applicable terms and conditions imposed by your good office for the full and successful development of the said project.
3. Contrary to the allegations of XXX, if his office would only exercise due diligence, he can secure at any time the necessary records and documents pertaining to the birth and existence of the said subdivision project, for example, by coordinating with the technical and/or records sections of your good office, the National Home Mortgage Finance Corp. (NHMFC), and the Office of the Municipal Engineer of xxx, Rizal, among others.
4. The ten (10) members that XXX has alleged in his letter as having withdrawn as complainants in the abovecited pending case (i.e.., XXX, et. al.) were actually pro-XXX members who were uncooperative to the homeowners association. As far as the association knows the said ten (10) members have not executed and filed with your good office any official and verified quitclaim, waiver, and/or notice of withdrawal under oath in favor of the respondent corporation. Further, the association recalls that its group lawyer (Atty. Manuel J. Laserna Jr.), per instruction of the association, had previously filed with your good office years ago a formal notice of withdrawal as counsel for the said ten (10) uncooperative members; and that it appears that the said ten (10) uncooperative members have not subsequently hired their own separate and new group lawyer to represent them in the abovecited case.
5. The association hereby manifests that it will continue to defend, assert, protect and preserve the rights and interests of its mass membership by pursuing the instant pending case before your good office, pursuant to existing laws and jurisprudence.
6. As far as the records of the NHMFC and your good office are concerned, there is no truth to the allegation of XXX Castro that the house and lots of the thirteen (13) members listed in his letter had been foreclosed, precisely because the association and its members have a pending case against the subdivision developer for non-compliance by the latter with its duty to develop the subdivision and to comply with existing social housing laws and rules and regulations. The legal and acquired assets departments of the NHFC are being informed by the association from time to time on the current status of the instant case, for which reason the NHMFC has deferred or suspend any formal or final foreclosure proceedings against the members of the association. The NHMFC has approved the application of some members of the association to restructure their unpaid housing loans, pursuant to a new 2009 social housing-related law, for which reason there is no legal basis to foreclose their units.
It is respectfully prayed that the instant case be now decided and resolved by your good office with finality on its merits, in the interest of justice, this case having been much delayed for many years now due to a previous unsuccessful appeal on a pending incident by the respondent corporation to the Office of the President.
X x x.”
For the information of this Honorable Office, the appellees, thru its association, i.e., the xxx HOMEOWNERS ASSOCIATION, INC., located at xxx Subdivision, xxx, Rizal, as early as September 27, 2008, had written Mr. JOSEPH PETER SISON, President of the NATIONAL HOME MORTGAGE FINANCE CORP. (NHMFC), on the subject of REQUEST FOR WAIVER OF INTERESTS, PENALTIES AND SURCHARGES, stating, thus:
X x x.
Recently your Legal Department has written us individual final notices, informing us that our house and lot units would soon be foreclosed and sold by your office unless we settle our mortgage obligations.
We have written your Legal Department on September 27, 2008, informing it:
That our house and lot units are the subject of a pending case that our homeowners association and its concerned members had initiated many years back against the developer of our subdivision, Mr. Arsenio de Castro, the Housing Insurance and Guarantee Corp. (HIGC), and the National Home Mortgage Finance Corp. (NHMFC) Finance and the Housing and Land Use Regulatory Board, entitled “xxx, et. al. vs. xxx, et. al.”, and docketed as HLURB Case No. REM-M-xxx (O.P. Case No. xxx).
That after many years of waiting, our association has won the case before the Office of the President as to the interlocutory issue of the validity of the writ of preliminary injunction issued by the HLURB against all of the individual and corporate defendants in the aforesaid case.
In view of the finality of the aforementioned decision of the Office of the President, denying the appeal of the respondents as to the issue of the validity of the writ of preliminary injunction issued by the HLURB against them, the HLURB has revived the case. It will send a team of ocular inspectors to inspect the subdivision on September 29, 2008, Monday, at 1:00 PM. When the ocular report of the HLURB inspectors shall have been duly submitted to their superiors, we shall file a “Motion To Submit the Case for Decision” in order to finally adjudicate our original complaint on its merits.
That, meanwhile, we pray that your Legal Department suspend any action to foreclose and auction our house and lot units until after the abovementioned case shall have been adjudicated with finality by the HLURB, in the interest of substantive justice and in order not to preempt its future judgment on the merits.
We are respectfully writing your good self, as the President of the NHMFC, for the following reasons:
• To assure your good self that we shall comply with our obligations to the NHMFC based on the judgment on the merits that the HLURB shall soon promulgate;
• To request your good self to affirm our aforecited letter to your Legal Department while the HLURB case is still pending;
• To request your good self to instruct your Legal Department to respect the jurisdiction of the HLURB with respect to the aforecited pending case and to avoid any act, e.g. premature foreclosure and auction sale, that may expose the NHMFC to possible contempt of HLURB; and
• To request your good self to grant us individual waivers of our past due interests, penalties and surcharges, if and when the HLRUB rules that we still have outstanding payables to the NHMFC.
X x x.”
On May 13, 2010, the Association had written the NHMFC’ Atty. DANTE RIZADA, Chief, Litigation Division, Legal Department, on the subject of the intermittent final demand letters its office had issued to some of the appellees sometime in March 2010, e.g. Account No. xxx. In their said letter the Association informed the NHMFC, thus:
“x x x.
This refers to your aforementioned FINAL DEMAND LETTER addressed to me, as a homeowner of xxx Subdivision located in xxx, Rizal, informing me that my house and lot unit had already been foreclosed with an alleged accumulated obligation of P571,179.35 and that I may avail myself of the benefits of R.A. 9507 upon payment of P6,850.00 to pay for the foreclosure costs incurred by your agency.
For the record, as stated in the various previous formal communications that our association had served on your agency since last year, please be informed that my house and lot unit is a subject of a pending case that our homeowners association and its concerned officers and members, of which I am now a director, had initiated many years back against the developer of our subdivision, xxx, the Housing Insurance and Guarantee Corp. (HIGC), and the National Home Mortgage Finance Corp. (NHMFC) Finance and the Housing and Land Use Regulatory Board, entitled “xxx, et. al. vs. xxx, et. al.”, and docketed as HLURB Case No. xxx (O.P. Case No. xxx).
After many years of waiting, our association has won the case before the Office of the President as to the interlocutory issue of the validity of the writ of preliminary injunction issued by the HLURB against all of the individual and corporate defendants in the aforesaid case.
In view of the finality of the aforementioned decision of the Office of the President, denying the appeal of the respondents as to the issue of the validity of the writ of preliminary injunction issued by the HLURB against them, the HLURB had revived the case last year by implementing in our subdivision a new series of ocular inspections.
For your information, the HLURB had promulgated a RESOLUTION, dated February 11, 2010, which basically delineated the duties and liabilities of the respondent developer and which clarified the duties and obligations of the homeowners and the NHMFC and HIGC as public respondents.
The developer filed an appeal with the Office of the President, docketed as OP Case No. xxx, which is now pending. The OP has issued an Order, dated April 27, 2010, requiring the appellant to file its appeal memorandum within 15 days, requiring our association to file its comment thereof within 15 days from receipt of the appeal memorandum, and requiring the HLURB to elevate the case records to the OP.
Meanwhile, we respectfully pray that you suspend any action to foreclose, auction, collect from, or dispose of my house and lot unit until after the abovementioned case shall have been adjudicated with finality by the OP, et. al., in the interest of substantive justice and in order not to preempt its future judgment on the merits in the said pending case.
X x x.”
The HLRUB and the opposing counsel were duly furnished copies of the foregoing documents.
II. ISSUES RAISED BY THE APPELLANTS
The appeal raises the argument that the appellant xxx. Corp. had allegedly complied with its legal duty to fully and completely develop the xxx Subd., xxx, Rizal, pursuant to existing laws and rules and regulations of the HLURB.
We beg to disagree. The evidence on record point otherwise.
III. COUNTER-DISCUSSION
The appellant ALDEC assails the Inspection Report, dated October 6, 2008, submitted to the HLURB by its regional technical personnel. The Report showed that appellant xxx had failed to perform its duty to develop the subdivision, thus: “Overall assessment on the Subdivision’s land development is incomplete particularly the open canal and macadam road”. It claims that the records (“approved plans and specifications”) to prove its arguments were no longer available (allegedly even in the HLURB) due to the long passage of time.
To controvert the foregoing allegation, it must be noted that in the course of the previous hearings or presentations of evidence before the HLURB, which took many years of hearings and appeals to and from HLURB and this Honorable Office since the early 1990s up to this very time, the complainants/appellees had successfully proved their claim that the appellant ALDEC had miserably failed to perform its duty to develop the subdivision and that many of the low-cost houses that it built were dangerously and miserably substandard.
At least two (2) field inspections were conducted by HLURB technical teams. Both sides were duly represented. No objections were raised by the appellant before and during the proceedings of such field inspections. As to the alleged absence of the approved plans and specifications of the subdivision, suffice it to say that such a generic and empty allegation cannot free and exempt the appellant from liability not only because the evidence on record showed otherwise but also because it took no serious efforts to look for, search, and discover, or reconstitute such records (either from its own vaults and warehouse, or from the warehouse or stockroom of the HLURB, or from the archives of its projects engineers, designers, and architects, and contractors, or from the database of the municipal engineer of xxx, Rizal, or from other related government agencies tasked to supervise all housing developers).
Because such records were suppose to buttress its claim, it had the fundamental duty to see to it that such records were properly traced, located, discovered, or reconstituted. But the appellant simply sat on its duty to do so. Instead, and on the contrary, it comfortably waited for an adverse decision of the HLURB to first come out before it belatedly raised the issue of alleged absence of its own records, which clearly a last-ditch attempt to once again delay this 15-year old case.
The failure of appellant to exert earnest efforts to search for, look for, trace. locate, discover, and reconstitute its alleged missing files and records from the multifarious offices, agencies, and offices that might have access and possession of copies thereof show not only negligence and estoppel on the part of the appellant but also an indicium of intent to hide the same.
In the case of MUNICIPALITY OF VICTORIAS vs. COURT OF APPEALS, NORMA LEUENBERGER and FRANCISCO SOLIVA, G.R. No. L-31189, March 31, 1987, an applicable case by analogy, where the petitioner failed to present before the Court a Deed of Sale to prove its purchase of the Land in question, it was held that under the Best Evidence Rule (Sec. 4, Rule 130 – Secondary Evidence) when the original writing is lost or otherwise unavailable and cannot be produced in court, the law in point provides that, upon proof of its execution and loss or destruction or unavailability, its contents may be proved by a copy, or by a recital of its contents in some authentic document, or by the recollection of witnesses.
At some point in time, litigation, especially one as old as the instant case (15 years old), must end, one way or the other. Endless appeals must not be allowed to in effect hold hostage the quest for justice of small homeowners.
In the case of INTESTATE ESTATE OF THE LATE DON MARIANO SAN PEDRO Y ESTEBAN, et. al. vs. COURT OF APPEALS, et. al., EN BANC, G.R. No. 103727, December 18, 1996. With companion case: ENGRACIO SAN PEDRO, et. al. vs. COURT OF APPEALS, et. al., G.R. No. 106496, December 18, 1996, it was held that “at some point, litigation must end”. Hence, after the procedures and processes for lawsuits have been undergone, and the modes of review set by law have been exhausted, or terminated, no further ventilation of the same subject matter is allowed. The Supreme Court added: “To be sure, there may be, on the part of the losing parties, continuing disagreement with the verdict, and the conclusions therein embodied. This is of no moment, indeed, is to be expected; but, it is not their will, but the Court’s, which must prevail; and, to repeat, public policy demands that at some definite time, the issues must be laid to rest and the court’s dispositions thereon accorded absolute finality.”
The appellees submit that the HLURB did not commit any grave or reversible error of fact and/or law and did not commit any grave abuse of discretion amounting to lack of excess of jurisdiction in its findings of fact and law as stated in its questioned Resolution of the HLURB Board, dated February 11, 2010, which maintained the original Decision of the HLURB Board, dated February 16, 1996. In the absence of a showing of grave and serious errors of fact and law on the part of the HLURB, which is the administrative agency primarily tasked by existing housing laws with the exclusive and original jurisdiction to supervise and regulate the housing industry and to adjudicate quasi-judicial controversies between developers and homeowners, the appealed HLURB resolution/decision must be upheld by this Honorable Office.
In the case of ENERGY REGULATORY BOARD, petitioner, vs. COURT OF APPEALS and PETROLEUM DISTRIBUTORS AND SERVICES CORPORATION, respondents, [G.R. No. 113079. April 20, 2001]; and PILIPINAS SHELL PETROLEUM CORPORATION, petitioner, vs. COURT OF APPEALS and PETROLEUM DISTRIBUTORS AND SERVICES CORPORATION, respondents, [G.R. No. 114923. April 20, 2001], it was held that the interpretation of an administrative government agency, which is tasked to implement a statute, is accorded great respect and ordinarily controls the construction of the courts. A long line of cases establish the basic rule that the courts will not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies. Generally, the interpretation of an administrative government agency, which is tasked to implement a statute, is accorded great respect and ordinarily controls the construction of the courts. ‘The rationale for this rule relates not only to the emergence of the multifarious needs of a modern or modernizing society and the establishment of diverse administrative agencies for addressing and satisfying those needs; it also relates to the accumulation of experience and growth of specialized capabilities by the administrative agency charged with implementing a particular statute.
The Court stressed in the said case that executive officials are presumed to have familiarized themselves with all the considerations pertinent to the meaning and purpose of the law, and to have formed an independent, conscientious and competent expert opinion thereon. The courts give much weight to the government agency or officials charged with the implementation of the law, their competence, expertness, experience and informed judgment, and the fact that they frequently are drafters of the law they interpret.
The very purpose of P.D. 957 (and other related housing laws), as culled from its preamble and from the situation, circumstances and conditions it sought to remedy at the time of its adoption in the mid-1970s, was to provide a protective mantle over citizens who may fall prey to the manipulations and machinations of ‘unscrupulous subdivision and condominium sellers’, and such intent is expressed clearly in its preamble. The said dangers and risks faced by homeowners caused by abuses and greed of exploitative and incompetent hosing developers continue to this very day. Among the provisions of P.D. 957 that protects the homeowners is Section 23 thereof which allows homeowners to desist from making further payments to developers due to the latter’s failure to develop their subdivision projects according to the approved plans and within the time limit for complying with the same.
The appellees respectfully urge this Honorable Office to remind the HLURB to elevate the entire case record of the instant case for the complete review de novo of this Honorable Office.
IV. PRAYER
WHEREFORE, premises considered, it is respectfully prayed that the instant appeal interposed by the appellants-respondents be DISMISSED for utter lack of merit.
FURTHER, the appellees-complainants respectfully pray for such and other reliefs as may be deemed just and equitable in the premises.
Las Pinas City, September 21, 2010.
MANUEL J. LASERNA JR.
Roll No. 33640, April 27, 1985
IBP Lifetime Member No. 1907
IBP PPLM Chapter
PTR No. 9957969, 1/4/10, Las Pinas
MCLE Compliance No. III-2280
Cc:
Atty. Xxx
Lead Counsel for the Private Respondents
HOUSING AND LAND USE REGULATORY BOARD
Board of Commissioners
Manager
Legal Department
NATIONAL HOME MORTGAGE
FINANCE CORP. (NHMFC)
Manager
Asset Management Department
NATIONAL HOME MORTGAGE
FINANCE CORP. (NHMFC)
7TH Flr. Filomena Bldg.
104 Amorsolo St., Legaspi Village
Makati City
Mr. xxx
Legal Liaison Officer
Xxx Homeowners Assn
xxx, Rizal
Explanation
A copy hereof is served on opposing counsel via registered mail due to lack of time and field personnel, due to the urgency of filing the same with this Honorable Office, and the distance of the law office of the opposing counsel.
Manuel Laserna Jr.
