Problem areas in legal

ethics
Notarial laws and
violations
Facts:
An affidavit-complaint filed by complainant
Carlito Ang against respondent alleged that on May
31, 1991, he and the other heirs of the late
Candelaria Magpayo, namely Purificacion Diamante
and William Magpayo, executed an Extra-judicial
Declaration of Heirs and Partition. He was given his
share of 2,003 square meters, together with all the
improvements thereon.
However, when he tried to secure a TCT in his
name, he found out that said TCT had already been
cancelled and in lieu and new TCTs had been issued in
the names of William Magpayo, Antonio Diamante,
CARLITO ANG vs. ATTY. JAMES JOSEPH
Patricia Diamante, Lolita D. Canque, Gregorio
GUPANA
Diamante, Jr. and Fe D. Montero.
A.C. No. 4545, February 5, 2014
 Ang alleged that there is reasonable ground to
believe that respondent had a direct participation in
the commission of forgeries and falsifications because
he was the one who prepared and notarized the
Affidavit of Loss and Deed of Absolute Sale. Ang
pointed out that the Deed of Absolute Sale which was
allegedly executed by Candelaria Magpayo on April
17, 1989, was antedated and Candelaria Magpayo’s
signature was forged as clearly shown by the
Certification.

Issue:
Whether or not respont is liable for act of selling
the property in dispute and violated the notarial law.
Held:
The Court finds that respondent did not act unethically when he sold
the property in dispute as the sellers’ attorney-in-fact because there was
no more notice of lis pendens annotated on the particular lot sold.
Likewise, the Court finds no sufficient evidence to show that the Deed of
Absolute Sale executed by Candelaria Magpayo on April 17, 1989 was
antedated.
However, the Court finds respondent administratively liable for
violation of his notarial duties when he failed to require the personal
presence of Candelaria Magpayo when he notarized the Affidavit of Loss
which Candelaria allegedly executed on April 29, 1994. Section 1 of Public
Act No. 2103, otherwise known as the Notarial Law, explicitly provides:
Sec. 1. x x x
(a) The acknowledgment shall be made before a notary public or an officer
duly authorized by law of the country to take acknowledgments of
instruments or documents in the place where the act is done. The notary
public or the officer taking the acknowledgment shall certify that the
person acknowledging the instrument or document is known to him and
that he is the same person who executed it, and acknowledged that the
same is his free act and deed. The certificate shall be made under his
official seal, if he is by law required to keep a seal, and if not, his
certificate shall so state.
 From the foregoing, it is clear that the party
acknowledging must appear before the notary public or
any other person authorized to take acknowledgments
of instruments or documents. In the case at bar, the
sworn statement of the Affidavit of Loss stated that
Candelaria subscribed to the affidavit before
respondent. Candelaria, however, was already dead
since March 26, 1991. Hence, it is clear violation of the
notarial law. Indeed, respondent averred in his position
paper before the IBP that he did not in fact know
Candelaria personally before, during and after the
notarization thus admitting that Candelaria was not
present when he notarized the documents.
The respondent Atty. James Joseph Gupana is
found administratively liable for misconduct and is
SUSPENDED from the practice of law for one year.
Further, his notarial commission, if any, is REVOKED and
he is disqualified from reappointment as Notary Public
for a period of two years,
Facts:
On October 15, 2003, Virginia Perez, Marcella Perez,
Amador Perez, Gloria Perez, Gracia Perez and Valentino
Perez (plaintiffs) filed a complaint for ejectment/forcible
entry against Gregory Fabay.
On the same date, October 15, 2003, Atty. Resuena
notarized a special power of attorney (SPA) with plaintiffs as
grantors, in favor of Apolo D. Perez. However, it appeared
that it was only Remedios Perez who actually signed the SP
A in behalf of the other plaintiff.
GREGORY FABAY
The ejectment vswas
case ATTY.REX
later on decided in favor of
the client of Atty. Resuena. In its Decision dated August 4,
A.RESUENA
2005, the trial court noted that both Amador Perez and
Valentino Perez have already died on September 7, 1988
A.C.No.8723, January 26,2016
and April 26, 1976, respectively.
 Complainant Fabay alleged that Atty. Resuena
violated the provisions of the Notarial Law by
notarizing a special power of attorney notwithstanding
the fact that two of the principals therein, Amador
Perez and Valentino Perez were already dead long
before the execution of the SPA.
Complainant added that Atty. Resuena likewise
notarized a complaint for ejectment in 2003 where
Apolo Perez was made to appear as attorney-in-fact
of Amador Perez and Valentino Perez when again the
latter could not have possibly authorized him as they
were already dead.
Thus, the instant complaint for disbarment for
violation of the notarial law and for Atty. Resuena's
misconduct as a lawyer.
Issue:
Whether or not Atty. Resuena violated the provisions
of the notarial law

Held:
The Supreme Court concurred with the findings of the
IBP that Atty. Resuena to have violated the provisions of
the notarial law.
Notaries public must observe with utmost care
the basic requirements in the performance of their
duties. Otherwise, the confidence of the public in the
integrity of this form of conveyance would be
undermined. Hence, a notary public should not
notarize a document unless the persons who signed
the same are the very same persons who executed
and personally appeared before him to attest to the
contents and truth of what are stated therein. The
purpose of this requirement is to enable the notary
public to verify the genuineness of the signature of
the acknowledging party and to ascertain that the
document is the party's free act and deed
Section 2 (b) of Rule IV of the 2004 Rules on Notarial Practice
stresses the necessity of the affiant' s personal appearance
before the notary public:
xxxx
(b) A person shall not perform a notarial act if the person
involved as signatory to the instrument or document - (1) is
not in the notary's presence personally at the time of the
notarization; and (2) is not personally known to the notary
public or otherwise identified by the notary public through
competent evidence of identity as defined by these Rules.

In the instant case, it is undisputed that Atty. Resuena

violated not only the notarial law but also his oath as a lawyer
when he notarized the subject SPA without all the affiant's
personal appearance. As found by the IBP-CBD, the purpose
of the SPA was to authorize a certain Apolo D. Perez to
represent the principals.
It is, thus, appalling that Atty. Resuena permitted
Remedios Perez to sign on behalf of Amador Perez and
Valentino Perez knowing fully well that the two were already
dead at that time of the execution of SPA.
 Through his acts, Atty. Resuena committed a
serious breach of the fundamental obligation imposed
upon him by the Code of Professional Responsibility,
particularly Rule 1. 01 of Canon 1, which prohibited him
from engaging in unlawful, dishonest, immoral or
deceitful conduct. As a lawyer and as an officer of the
court, it was his duty to serve the ends of justice, not to
corrupt it. Oath-bound, he was expected to act at all
times in accordance with law and ethics, and if he did
not, he would not only injure himself and the public but
also bring reproach upon an honorable profession.
WHEREFORE, Atty. Rex A. Resuena is found GUILTY
of malpractice as a notary public, and of violating the
lawyer's oath as well as Rule 1.01, Canon 1 of the Code
of Professional Responsibility. Accordingly, he is
DISBARRED from the practice of law and likewise
PERPETUALLY DISQUALIFIED from being commissioned
as a notary public.
Facts:
That on June 30, 2000, respondent Atty. Humberto B.
Basco, Notary Public of Manila testified before the Regional
Trial Court of Manila, Branch 35, stating among others, that
he allegedly notarized a Deed of Sale allegedly executed by
complainant Josefina P. Soriano. He further testified that
Josefina Soriano personally appeared before him when he
notarized the Deed of Sale.
The complainant stated that she had never appeared
before Notary Public Humberto B. Basco, had not seen
much less received copy of the alleged contract,
complainant requested for a copy of the alleged contract
from the Office of the Clerk of Court and Ex-Officio Sheriff,
Regional Trial Court of Manila concerning the
JOSEFINA P. SORIANO
aforementioned Deed of Salevs. ATTY. HUMBERTO
B. BASCO
A.C. No. 6648. September 21, 2005
 Clerk of Court VII Jennifer H. Dela Cruz-Buendia,
issued a Certification dated February 11, 2003 certifying
that the alleged Deed of Sale involving Josefina P.
Soriano as vendor alleged to have been acknowledged
before Notary Public Humberto B. Basco was not among
the document submitted to said office.
Complainant also received a certified true copy of
the notarial register of Notary Public Basco which
disclosed his failure to indicate the names of the
witnesses, fees charged, the respective residence
certificates of the parties to the documents which he
notarized. Although Atty. Basco was duty bound to
furnish to complainant a certified true copy of the
alleged deed, he failed to do so despite demand
therefor.
ISSUE:
Whether or not the respondent is guilty of violation
of Notarial Law.
Held:
Atty. Basco violated the Notarial Law by failing to
provide all the necessary information regarding the
questioned Deed of Sale entered in his notarial
register. He even notarized said instrument even
without the notation of the residence certificate of the
party to the document.
As a notary public, respondent is required by the
Notarial Law to certify that the party to the instrument
acknowledged before him has presented the proper
residence certificate (or exemption from the residence
certificate) and to enter its number, place of issue and
date as part of the certification. Worse, he likewise
failed to send copy of the notarized document to the
clerk of court of the proper RTC and to retain a copy
thereof for his own records. These formalities are
mandatory and cannot simply be neglected. Failure to
perform this duty results in the revocation of a notary's
commission
 The notarial registry is a record of the notary
public’s official acts. Acknowledged documents and
instruments recorded in it are considered public
documents. If the document or instrument does not
appear in the notarial records and there is no copy of it
therein, doubt is engendered that the document or
instrument was not really notarized, so that it is not a
public document and cannot bolster any claim made
based on this document. Considering the evidentiary
value given to notarized documents, the failure of the
notary public to record the document in his notarial
registry is tantamount to falsely making it appear that
the document was notarized when in fact it was
not. xxx. This is a clear violation of the Notarial Law for
which he must be disciplined.
WHEREFORE, for breach of the notarial law, the
commission of respondent Atty. Humberto B. Basco as
Notary Public, if still existing, is REVOKED and he is
DISQUALIFIED from being commissioned as such for a
period of one (1) year with a WARNING that a repetition
of the same negligent act charged in the complaint will
Thank you!!