REPUBLIC OF THE PHILIPPINES

SECOND JUDICIA REGION

REGIONAL TRIAL COURT
Branch 35
Santiago City

MARITES SECULLES MONTEMAYOR,

Plaintiff,

Civil Case No. 35-0476

-versus-

Sps Necitos Tolete, et.al.

X--------------------------------------------------X

URGENT MOTION TO QUASH THE WRIT AND OR TO SET ASIDE WRIT

Movants, Spouses Necitos S. Tolete and Virginia Morales, by counsel,

unto this Honorable Court most respectfully move that the Writ of Possession
be quashed and set-aside and aver:

1. On February 1, 2023, defendants who are actual occupants of the

received a Notice to Vacate and surrender defendants’ subject property within 7
days from receipt of the said notice in accordance with the Order granting the
issuance of a Writ of Execution issued by this Honorable Court;

Arguments

That the extrajudicial foreclosure proceedings in this was in gross

violation of the requirements of Act No. 3135, thus the Writ of Possesion
is Null and Void

The facts are as follows:

a. On May 03, 2016, Spouses defendants obtained a loan from Mallig

Plains RB (Isa.) secured by a Real Estate Mortgage 1 in the amount of
One hundred thirty thousand (130,000php) pesos which was duly
recorded in the Registry of Deeds dated March 06, 2016;
b. That on February 1, 2020 the defendants received a Final Demand on
the Overdue Account amounting to One hundred eighty thousand
(180,000.00php) pesos which is hereto attached as Annex “”____”;
c. That the daughter of my Sps Tolete went to the bank to inquire about
their parents loan, she was given computation amounting to Three
hundred forty thousand (340,000.00php) which is hereto attached
as Annex ___”;

1
Notarized by Atty Betguen, Doc No. 870, Page 174, Book No. XXIX, series of 2016

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 d. That the daughter informed the bank that her parents, Sps Tolete will
settle this and just have to wait until they come back from Bautista,
Pangasinan where they are farming mangoes;
e. That On March 16, 2020 then President Duterte declared an
Enhanced Community Quarantine (ECQ) in the entire Luzon group of
Islands, effectively a total lockdown;

f. That without Notice of Foreclosure, they were able to publish in a

newspaper the notarized foreclosure dated July 18-24, 2020 or only
one week of publication stating that the mortgage indebtedness as of
May 29, 2020 amounted to Two hundred fifty thousand (250,000php)
pesos plus an amount covering all expenses incurred;

g. That on September 10, 2020, records show that a Certificate of Sale

was issued by the Sheriff which states that, “The copy of the Extra
judicial Foreclosure Sale was also published in Luzonwide News
Correspondent, an accredited newspaper of general circulation for/in
the City of Santiago for once a week for three consecutive weeks and
the same was also posted at least twenty (20) days before the date of
sale in three (3) conspicuous planes within the Municipality of
Cordon, Province of Isabela, the place where the property to be sold is
located at the bulletin board of the Regional Trial Court, Santiago
City, the place where the auction sale conducted”;

h. The same Certificate of Sale state that the lone bidder is Mallig Plains
Rural Banks (Isa.),Inc., who offered its written bid in the amount of
Three hundred thousand (300,0000 pesos);
i. That the Certificate of Sale was recorded in the Registry of Deeds
dated September 29, 2020;
j. On Nov 8, 2021, an Affidavit of Non-Redemption executed by Praxedes
Ignacio, CEO & President of Mallig Rural Plains (Isa.,) & Deed of
Absolute Sale was simultaneously executed in favor of Marites
Montemayor;

Defenses

a. The defendants only received a Final demand letter from a lawyer

obligating them to pay the amount of One hundred eight thousand
pesos. NO prior demands were received because they have been paying ;

b. When Lorena Tolete, went to the bank 3 days after the receipt she
inquired about the said loan and was given a statement of account
amounting to Three hundred forty thousand (340,000.00) pesos. Since
she was surprised of the exhorbitant amount, she asked them that it will
be settled should his father come home from Pangasinan. It is an
amount different from the demand letter received in January 29, 2021
which is only One hundred eighty thousand (180,000.00php);

c. Sps Tolete even paid the amount of Forty thousand pesos (40,000.00) in
2019 to show good faith that they have the intention to redeem;

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 d. However, when the government declared a national emergency in March
15, 2020, Sps Tolete could no longer come home due to fear of COVID-19
and no available public transport at that time;

e. The truth is it was only in August 1, 2022 that the Spouses were able to
come home, which is likewise the first hearing of the Petition for writ of
possession. They also did not have the opportunity to oppose the
Petition because the lawyer whom they first asked did not attend nor
oppose;

f. What is also surprising was that the bank was able to apply for an
extrajudicial foreclosure of the property during the pandemic. It is also
noteworthy that from the months of March 2020-September 2020,
COVID-19 cases were high, there were only limited services including the
courts at that time. Banks were also instructed to give loan moratorium
to borrower due to economic effect of the pandemic. The bank did not
give moratorium to the Sps. Tolete, worst they even foreclosed their
family home;

g. No notice of foreclosure were likewise issued to the defendants. They

only learned that somebody bought their family home when they were
summoned to the barangay;
h. After they were summoned to the barangay, their daughter, Lorena
Tolete inquired what was the Ejectment all about. She further inquired
on the outstanding obligation, however, they did no longer accommodate
her and just told her that they no longer have the records. It already
with the main branch;
i. From the months of March to June, 2022, the bank did not explain to
her what happened during the foreclosure;

Assuming that the foreclosure was valid, the fact that defendants
daughter visited the bank a number of times to show intent to redeem,
they should have offered repurchase after it was foreclosed. They have
all the means to inform the defendants’ daughter, but they never did.
They cannot fathom the action of the bank. However, based on the deed
of sale, they must have realized that to sell it other people has more
potential income since they sold it for Four hundred thousand (400,000),
an amount that is more than 100% of the obligation.

The bank , a rural bank who should meet the credit needs of farmers
such as the borrower was not protected. Further, this happened in year
2020 when Covid-19 pandemic affected the lives of every Filipino.

That the mortgage and its foreclosure proceedings in this case was in
gross violation of the requirements of Act No. 3135 as enunciated by Supreme
Court rulings, specifically, that no notice was sent to the herein movant and
that the notice of auction sale was not posted in the place where the subject
property is located (Lucena vs. Court of Appeals, 313 SCRA 47); That the
mortgage is null and void as the interest and penalties are unconscionable and
exorbitant, hence, the foreclosure case is null and void. That furthermore,
movants were not notified of the foreclosure sale.

1. That furthermore, movants were not notified of the proceedings in this

case and they were not able to participate and file their objections to the

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petition filed by the petitioner. That it will be noted that the Notice of Hearing
dated October 4, 2012, sent to them stated that the hearing will be held on
November 27, 2012 at 8:30 o’clock in the morning, however, the decision of
the case stated that the hearing was actually conducted a day after or on
November 28, 2012.

The Bank was the lone bidder in the scheduled public auction dated September
1, 2020. The PROCEDURE IN EXTRA-JUDICIAL FORECLOSURE OF
MORTGAGE provides that

5. No auction sale shall be held unless there are at least two (2) participating
bidders, otherwise the sale shall be postponed to another date. If on the new
date set for the sale there shall not be at least two bidders, the sale shall then
proceed. The names of the bidders shall be reported by the sheriff or the notary
public who conducted the sale to the Clerk of Court before the issuance of the
certificate of sale.2

It is specifically stated by the Sheriff that the bank was the lone bidder so the
sheriff should have postponed it to another date. However, they still proceeded
with the sale with the lone bidder.

Petition of Writ of Possession

a. The first hearing for the Petition for issuance of Writ of Possession was
held on August 01, 2022 and said notice was received by _____ on June
20, 2022 Sps Tolete attended the hearing but they have no counsel. Sps
Tolete even informed the court that they have an agreement with the
bank, though orally, they would settle the obligation once they are back
in town;
b. On September 12, 2022, Atty Olonan appeared for on behalf of the
Spouses Tolete; -
c. However, on October 13, 2022, Atty Olonan did no longer appear and
told the respondents that he can no longer handle their case;
d. November 17, 2023 a decision was rendered
e. A writ of possession was issued dated January 12, 2023;
f. A notice to vacate was received dated January 16, 2023.

The defendants did not have a proper representation in court during the
hearing of the Petition for the Issuance of the Writ and that they were not
properly heard.

House is constituted as a family home since it was constituted in 1986.

SPs Tolete is the only property that they own and they have constituted it as a
family home. In fact, their daughter and granddaughters and grandson are the
present occupants.

2
A.M. No. 99-10-05-0 December 14, 1999

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That the family home when it as constituted was below Two hundred thousand
pesos( 200,000.00)
It was held in Eulegio vs Bell, G.R. No. 186322 , July 8, 2015

“Respondents’ family home cannot be sold on execution under Article 160 of

Family Code.

Unquestionably, the family home is exempt from execution as expressly

provided for in Article 153 of the Family Code. 39

It has been said that the family home is a real right that is gratuitous,
inalienable and free from attachment.40 The great controlling purpose and
policy of the Constitution is the protection or the preservation of the homestead
- the dwelling place. A houseless, homeless population is a burden upon the
energy, industry, and morals of the community to which it belongs. No greater
calamity, not tainted with crime, can befall a family than to be expelled from
the roof under which it has been gathered and sheltered. 41 The family home
cannot be seized by creditors except in special cases. 42

The nature and character of the property that debtors may claim to be exempt,
however, are determined by the exemption statute. The exemption is limited to
the particular kind of property of the specific articles prescribed by the statute;
the exemption cannot exceed the statutory limit.43

Articles 155 and 160 of the Family Code specify the exceptions mentioned in
Article 153, to wit:

ARTICLE 155. the family home shall be exempt from execution, forced sale or
attachment except;

1. For nonpayment of taxes;

2. For debts incurred prior to the constitution of the family home;

3. For debts secured by mortgages on the premises before or after such

constitution; and

4. For debts due to laborers, mechanics, architects, builders,

materialmen and others who have rendered service or furnished material
for the construction of the building.

ARTICLE 160. when a creditor whose claims is not among those mentioned in
Article 155 obtains a judgment in his favor, and he has reasonable grounds to
believe that the family home is actually worth more than the maximum amount
fixed in Article 157, he may apply to the court which rendered the judgment for
an order directing the sale of the property under execution. The court shall so
order if it finds that the actual value of the family home exceeds the maximum
amount allowed by law as of the time of its constitution. If the increased actual
value exceeds the maximum allowed in Article 157 and results from
subsequent voluntary improvements introduced by the person or persons
constituting the family home, by the owners of the property, or by any of the
beneficiaries, the same rule and procedure shall apply.

At the execution sale, no bid below the value allowed for a family home shall be
considered. The proceeds shall be applied first to the amount mentioned in

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Article 157, and then to the liabilities under the judgment and the costs. The
excess, is any, shall be delivered to the judgment debtor.”

The 481 square meters land where the family home is established has other
buildings erected thereon. At the back of Sps Tolete’s house is their
daughter’s bungalow house with 3 rooms, Lea Esperanzate, a Smoke fish
building is likewise erected thereon and a small sari sari store is also erected in
front of their house. To foreclose the property would also mean foreclosing all
the structures erected in the said land.

On the purchase of Marites Montemayor from the bank

She admitted in open court that she knew at the time of sale that the Rural
Bank has not taken possession of the property. She likewise knew that the
Sps Tolete are the occupants and possessors of the said family house. That the
family house is not the only house erected thereon, the house of their daughter
is also erected at the back of their family home.

That it will be noted that the “Notice of Extra-Judicial Sale”

2. That in the case of Sulit vs. Court of Appeals, G.R. No. 119247.
February 17, 1997], the Honorable Supreme Court withheld the issuance of a
writ of possession because the mortgagee failed to deliver the surplus from the
proceeds of the foreclosure sale which is equivalent to approximately 40% of
the total mortgage debt.

3. That, this Honorable Court can legally defer the issuance of the writ of
possession conformably to the rulings of the Supreme Court in Cometa vs.
IAC, 151 SCRA 563, and Barican vs. IAC, 162 SCRA 358, where the
Supreme Court ordered the deferment of the issuance of the writ of
possession.

4. That in the case of Barican, et al. vs. Intermediate Appellate Court, et

al., (G.R. No. 79906, June 20, 1988, 162 SCRA 358, reiterated in Policarpio vs.
Active Bank, G.R. No. 157125, 19 September 2008, 566 SCRA 27, 32, and
cited in The Parents-Teachers Association (PTA) of St. Mathew Christian
Academy vs. Metropolitan Bank and Trust Co., G.R. No. 176518, 2 March
2010, G.R. No. 177881, 13 October 2010) the Supreme Court ruled therein
that under the circumstances, the obligation of a court to issue a writ of
possession in favor of the purchaser in a foreclosure of mortgage case ceases to
be ministerial. Hence, supporting the view that a petition for issuance of a writ
of possession is not ministerial if there is an opposition. The same ruling was
applied in Cometa vs. Intermediate Appellate Court (G.R. No. 69294, June 30,
1987, 151 SCRA 563), wherein, it decided to withhold the issuance of the writ
of possession on the ground that it could work injustice because the petitioner
might not be entitled to the same.

WHEREFORE, premises considered, it is respectfully prayed that the Writ of

possession be set-aside and that the proceedings for the implementation of the

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same be held in abeyance in the interest of higher justice and for humanitarian
reason. Further, that the Sheriff be restrained from implementing the writ of
execution.

Other reliefs, just and equitable are prayed for.

Diffun, Quirino for Santiago City, Philippines.

ATTY. MA. KAREN A. BALDONADO-GUILLERMO

Counsel for the Movants
PTR No. 6615176/ 01-03-2023
Lifetime IBP No. 17396/05-26-2017
ROLL No. 67812/05-26-2017
MCLE Compliance No. VII-0011027; Valid until April 2025
Andres Bonifacio, Diffun, Quirino
Email @ attykaren85@gmail.com
0939 990 1124

NOTICE OF HEARING

The Clerk of Court

Regional Trial Court
Branch 35
Santiago CIty

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 Greetings!

Please submit the foregoing for hearing on February 10, 2023 or

immediately thereafter as counsel may be heard.

MA KAREN BALDONADO-GUILLERMO

NOTICE OF HEARING

Atty. Pablo M. Esguerra

Pakil, Laguna

Greetings!

Please take notice that the undersigned will submit the foregoing for
hearing on July 19, 2013 at 8:30 A.M. or immediately thereafter as counsel
may be heard.

NICCOLO A. PARAISO

CERTIFICATION

I hereby certify that a copy of the foregoing was served to Atty. Pablo M.
Esguerra by registered mail with return card due to distance and time
constraint.

NICCOLO A. PARAISO

Copy furnished:

Atty. Pablo M. Esguerra

Pakil, Laguna

Office of the Sheriff

Siniloan, Laguna