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:
I.
INTRODUCTION.
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.
PRAYER
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.
Xxx, xxx.
SIGNED BY THE COMPLAINANTS-MOVANTS.
NOTICE
Hon. Xxx
HLU
Arbiter
HLURB
NCR Field Office
7/F
Sunnymede IT Center
Quezon
Ave., Quezon City
Greetings
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.
Copy Furnished:
XXX, et. al.
Respondents
c/o XXX
Lead Respondent
No. XX, XXX Street
Xxx Subdivision, XXX
Reg.
Rec. No.
Date PO
EXPLANATION
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.
