Our law office had prepared a motion for issuance of a cease and desist order which was filed in the Housing and Land Use Regulatory Board (HLURB) in connection with an election conflict between two contesting sets of elected leaders in a subdivision. We are sharing the motion for legal research purposes of our readers and followers.
Republic of the Philippines
Housing and Urban Development Coordinating Council
HOUSING AND LAND USE REGULATORY BOARD
7/F Sunnymede IT Center, Quezon Avenue Quezon City
(CASE CAPTION ommitted...)
URGENT MOTION FOR ISSUANCE OF CEASE AND DESIST ORDER
THE COMPLAINANTS, pro se, respectfully state:
In the Petition filed by the Complainants on xxx, they sought to restrain the Respondents from intervening in the internal administrative, organization, leadership and other affairs and activities of the xxx Subdivision Homeowners Association Inc. (xxx).
The HLU Arbiter, xxx issued an Order, directing both parties to appear on xxx to hear the application for the Cease and Desist Order (CDO).
After a short discussion on the CDO issue, the HLU Arbiter ordered the complainants to elaborate the acts of the respondents to be restrained giving the complainants five (5) days or until xxx to submit the necessary motion and since the xxx is Saturday, this motion would be submitted on xxx.
II. STATEMENT OF FACTS
1. The HLURB Board of Commissioners had issued a DECISION, dated xxx, in HLURB Case No. NCRHOA-A-xxx (NCRHOA-xxx) reversing the earlier DECISION, dated xxx, of Housing and Land Use Arbiter xxx in the underlying case docketed as HLURB NCRHOA – xxx,
2. The herein Complainants questioned the Decision of the Board of Commissioners by filing a seasonable Petition for Review with the Court of Appeals, CA Case No. G. R. xxx, entitled “xxx, et. al. vs. xxx, et. al.”, praying for the following reliefs, to wit:
“x x x.
WHEREFORE, premises considered, it is most respectfully prayed that:
1. A Temporary Restraining Order (TRO) be immediately issued upon filing of this petition, restraining the respondents and the Housing and Land Use Regulatory Board (HLURB) and any and all of its officers, personnel, agents, and units, offices and departments from implementing and enforcing the questioned HLURB BOARD Decision, dated xxx, pendente lite in the interest of justice;
2. A Writ of Preliminary Injunction (WPI) be issued pendente lite against the respondents and the HLURB prior to the expiration of the TRO prayed for above, in the interest of justice.
3. The questioned HLURB BOARD Decision, dated xxx be REVERSED AND SET ASIDE and a new one be issued making perpetual the TRO and the Writ of Preliminary Injunction and ordering the HLURB BOARD and its implementing arms, units, offices, and personnel;
1) To immediately call, hold, supervise, control, direct, and administer the regular annual election of the members of the Board of Directors of the XXX SUBDIVISION HOMEOWNERS ASSOCIATION (XXX) as soon as possible and without further delay upon the finality of the Decision of this Honorable Court in the instant petition, in accordance with its By-Laws, R.A. 9904 (Magna Carta for Homeowners and Homeowners Associations), and its Implementing Rules and Regulations;
2) To immediately create a 3-man HLURB Election Committee to be composed of three (3) duly authorized officials/staff thereof, the most senior of whom shall serve as the Chairman, with the sole power and authority to call, hold, control, administer, direct and supervise the said Election;
3) To appoint one (1) duly authorized representative each from the sides of the petitioners and the respondents, as sitting observers in all the hearings, activities, meetings, dealings, and transactions of the said HLURB Election Committee.
4) To order the Provincial Commander of the Philippine National Police (PNP) of xxx Province, with headquarters at xxx, to act as the duly authorized peace-keeping force during the said HLURB-supervised election until the said election process is terminated and the winning candidates proclaimed by the HLURB Election Committee.
FURTHER, the petitioners respectfully pray for such and other reliefs as may be deemed just and equitable in the premises.
X x x.”
3. The respondents had voluntarily submitted themselves to the jurisdiction of the Court of Appeals (CA) by filing of their Counter Memorandum and other pleadings praying for affirmative reliefs in the aforecited CA case.
4. On xxx, the CA issued a Resolution (Annex “A”, supra) quoted hereunder as follows;
“With the filing of the required pleadings, the petitioner with prayer for injunctive relief is now deemed submitted for decision”
5. The said CA case is still pending and unresolved as of today.
5.1. The aforecited questioned Decision of the HLURB Board of Commissioners has not attained finality.
5.2. There is no Writ of Execution either from the CA or the HLURB empowering and authorizing the herein Respondents to conduct any and all kinds of elections or organizational acts and activities.
6. The “election” conducted on xxx by the herein Respondents was actually an undemocratic, fraudulent, illegal, unauthorized and ultra vires “selection” in complete disregard of the will and the voice of the homeowners of Xxx Subdivision.
6.1. It was unethically, contemptuously, and illegally intended to preempt the future judgment of the CA.
6.2. It was maliciously intended to render the future decision of the CA moot and academic and ineffectual.
6.3. It violated the “judicial doctrine and tradition of difference to a higher court”, pursuant to the spirit of Rule 65 (Certiorari, Prohibition and Mandamus) of the 1997 Rules of Civil Procedure.
7. In the interest of justice, due process and fair play, the herein Respondents should be immediately restrained from committing any and all acts of organizational leadership and administration with respect to the Xxx Subdivision Homeowners Association, Inc. (XXX), while the instant case is pending before the CA and the HLURB.
8. For the record, the herein Complainants hereby adopt into this Supplemental Motion for CDO, by incorporation and reference, all the allegations, arguments and supporting documents stated in or annexed to the main Petition that they had filed in the instant case.
WHEREFORE, premises considered, it is most respectfully prayed that a Cease and Desist Order be issued restraining the herein Respondents from:
1. Performing, exercising, and doing any and all acts, functions or activities, pursuant to and arising from the illegal, unauthorized, ultra vires and contemptuous “selection” maliciously conducted by the herein Respondents on xxx to “select” the xxx directors and officers of the Xxx Subdivision Homeowners Association, Inc. (XXX);
2. Interfering, meddling, participating and involving themselves in the organizational leadership, management, administration, and operations of the Xxx Subdivision Homeowners Association, Inc. (XXX) and/or performing any and all acts and activities for and on behalf of XXX, such as, but not necessarily limited to, the following;
2.1. The forcible collection and expenditure of association dues and fees in any manner whatsoever, such as by including the said dues and fees in the water bills of the Xxx Subdivision Multi-Purpose Cooperative (xxx);
2.2. The forcible collection and expenditure of “construction permit” fees and “association clearances”;
2.3. Misrepresenting themselves to the General Public and the Government that they are the legitimate directors of XXX for the year 2017;
2.4. Issuing resolutions, circulars, or orders to the homeowners of the Xxx Subdivision or to any and all personnel, security guards, or agents of XXX;
2.5. Soliciting foods and drinks for the meetings and other activities of the herein Respondents from fast food chains, like Jollibee, and soliciting any and all kinds of donations from any and all sources and donors in behalf of XXX;
2.6. Calling the next election of the XXX Board scheduled by its By-Laws in December 2017.
2.7. Performing and doing any and all acts and activities that would, directly and indirectly, preempt and render moot and academic and ineffectual the future Decision of the Court of Appeals in the aforecited pending case between the herein parties in CA GR No. xxx entitled “xxx, et. al. vs. xxx, et. al”.
FURTHER, the Complainants hereby respectfully pray that after notice and hearing, the foregoing CDO be made permanent and perpetual.
FINALLY, the Complainants hereby pray for such and other reliefs as may be deemed just and equitable in the premises.
SIGNED BY THE COMPLAINANTS-MOVANTS.
HLURB NCR Field Office
7/F Sunnymede IT Center
Quezon Ave., Quezon City
We are submitting the foregoing “Urgent Supplemental Motion for the Issuance of a CDO”, for your kind and URGENT consideration and approval immediately upon receipt, subject to your discretion to require the Respondents to file their Comment/Opposition thereon. The herein Respondents, through the lead Respondent, xxx, are duly furnished copy of this urgent motion via registered mail.
SIGNED BY THE LEAD COMPLAINANTS.
XXX, et. al.
No. XX, XXX Street
Xxx Subdivision, XXX
Reg. Rec. No.
Copies of this urgent supplemental motion are served on the herein respondents via registered mail due to the urgency of filing the same.
Signed by the lead complainants.
Enclosed : Annex “A”, supra.