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- Classification Inviting
- Classified ID 37626
- Category Services
- Location Mandaluyong City
- Date Posted Aug-01-2014
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- GLOBE ASIATIQUE REALTY HOLDINGS CORPORATION
- 2ND Floor, GA Tower 2 Condominium, EDSA, Boni Ave., Mandaluyong City
Written byDelfin Lee
CA-G.R.SP NO. 128262
Page 20 of page 21
The propriety and correctness of the Summary Judgment is a proper subject of an appeal under Rule 41 as what was resorted to by Faria and Atty. Bernabe. We are also aware that public respondents denial of HDMFS Motion of Reconsideration of the Summary Judgment made the case final in view of its (HDMFS) failure to file the correct appeal under Rule 41 within the 15-day period and it cannot be corrected by Certiorari (under Rule 65) as a substitute appeal for a lost one (Under Rule 41). Be that as it may the instant case is far from being completely final and executor considering that Faria and Atty. Bernabe have seasonably appealed the same under Rule 41. To pass upon the above mentioned matter, re propriety and correctness of Summary Judgment now in the instant petition is not only improper but also hovers on procedural and jurisdictional matters not to mention that it would be premature as it preempts the proper and timely adjudication of the respective appeals (of Faria and Atty. Bernabe) on its merits by this Court at the proper opportune time.
WHEREOF, there being no grave abuse of discretion amounting to lack of excess of jurisdiction on the part of public rendering the assailed Resolution dated January 30, 2012 containing the Summary Judgment and the Resolution dated December 11, 2012 denying HDMF, Faria and Atty. Bernabes Motion for Reconsideration, the instant petition is herebyDISMISSED.
STEPHEN C. CRUZ
MAGDANGAL M. DE LEON
ELIHU A. YBANEZ
Loan take out and issue a notice to plaintiff Globe Asiatique in order for the latter to correct and submit the lacking requirements in any buyer-borrower who is subsequently found to be ineligible for the loan. Simply stated, the introduction of any evidence by defendant HDMF regarding alleged spurious and fictitious buyer-borrowers become inconsequential, immaterial and irrelevant as it is the one which approved their PAG-IBIG membership, approved their loan applications, and supposedly post validated their eligibility for loans. Globe Asiatique, on the other hand, cannot be said to have breached any of the warranties provided in the FCAs because these warranties are now inexistent as per the provisions of the MOA because of these warranties are premised on the supposed power of Globe Asiatique to approve the loan applications of the PAG-IBIG FUND buyer-borrowers, a power which has already has been removed by the MOA.
WHEREFORE, premises considered, a Summary Judgment is hereby rendered declaring that:
- Plaintiffs have proven their case by preponderance of evidence. As such they are entitled to specific performance and right to damages as prayed for in the Complaint, except that the exact amount of damages will have to be determined during trial proper.
- Pursuant to the provision of their MOA amending the continuing FCAs and CSAs, a defendant HDMF is hereby ordered to comply faithfully and religiously with its obligations under the said contracts, including but not limited to the release of loan take out proceeds of those accounts whose Deeds(s) of Assignment with Special Power of Attorney have already been annotated in the corresponding Transfer Certificate of Title covering the houses and lots purchased by the PAG-IBIG member-borrower from plaintiff GARHC as well as the evaluation of the loan applications of those who underwent or will undergo plaintiff GARHC loan counseling and are qualified for PAG-IBIG FUND loans under the MOA and continuing FCAs and process the approval thereof only if qualified, under the Window 1 Facility as provided for in MOA and continuing FCAs;
- The unilateral cancellation by defendant HDMF of the continuing FCAs specially the latest FCAs of December 15, 2009, January 5 and March 17, 2010 and CSA dated 10 February 2009, is hereby SET ASIDE:
- Defendants are ordered to automatically off set the balance of those listed in ANNEX E of the Motion of Summary Judgment against the retention money, escrow money, funding commitment fees, loan take out proceeds and other receivables of plaintiff GARHC which are still in control and possession of defendant HDMF;
- Defendants are ordered to accept the replacement-buyers listed in Annex F of the Motion of Summary Judgment, which list is unopposed by defendants, without interest or penalty from the time of defendant HDMFs cancellation of the Collection Servicing Agreement (CSA)
CA-G.R. SP No. 127553
Supreme Court in the case of Salonga vs. Hon. Pao, et al. instructs, thus:
The purpose of preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expenses and anxiety of a public trial, and also to protect the state from useless and expensive trials. The right to a preliminary investigation is a salutatory grant, and to withhold it would be to transgress constitutional due process. However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that the transgressor shall not escape with impunity. A preliminary investigation serves not only the purpose of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieved the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused.Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such as finding should not disregard the facts before the judge nor run counter to the dictates of reason.The judge of fiscal, therefore should not go on with prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so. (Emphasis Supplied). (Citations Omitted).
Meanwhile, the Motion for Reconsideration filed by the OSG on September 18, 2013 is merely NOTED in the view of the previous resolution issued by this Court denying its motion of extension of time within which to file a Memorandum.
WHEREFORE,in view of the foregoing, the instant petition is herebyPARTIALLY GRANTED. The assailed Resolutions dated May 22. 2012 and August 22, 2012 are herebyANNULLEDandSET ASIDEfor the issuance thereof was attended with grave abuse of discretion on the part of public respondent Hon. Ma. Amifaith S. Fider-Reyes, in her capacity as the Presiding judge of San Fernando, Pampanga RTC - Branch 42. Consequently the warrant of arrest issued against petitioner Delfin S. Lee is herebyQUASHED, RECALLED AND LIFTED.Afore-named public respondent judge is directed toCEASEandDESISTfrom future proceedingwith Criminal Case No. 18480 insofar as petitioner Delfin S. Lee is concerned.
Furthermore, all government agencies tasked in the enforcement of the said warrant of arrest including but not limited to the Philippine National Police (PNP), National Bureau of Investigation (NBI), and Bureau of Immigration (BI) are immediately ENJOINED from implementing the same.
FRANCHITO M. DIAMANTE
AGNES REYES- CAPRIO
MELCHOR Q.C SADANG
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above decision were reached in consultation before the case to the writer of the opinion of the court.
FRANCHITO M. DIAMANTE
Special Fifteenth Division
Delfin Lee of Globe Asiatique wins against Pagibig : Lifting of Warrant Certified by the PNP
Written byDelfin Lee
Republic of the Philippines
NATIONAL POLICE COMMISSION
NATIONAL HEADQUARTERS PHILIPPINE NATIONAL POLICE OFFICE OF THE CHIEF, PNP
Camp Crame Quezon City
ATTY. MANUEL R. PICHAY
Rivera, Pedrico and Rivera-Tamayo Law Offices
1097 Apt. 9, Sugay Building
Mc Arthur Highway, Balibago
Dear Atty. Pichay:
This pertains to your letter dated December 2, 2013 addressed to the undersigned, requesting for certification of de-listing of your client, Mr. Delfin S. Lee from the list of wanted persons in view of the Court of Appeals Decision dated November 7, 2013 immediately enjoining the PNP from implementing the quashed warrant of arrest against him.
Please be informed that the PNP is now in the process of de-listing Mr. Delfin S. Lee from the list of wanted persons following procedures as set forth in the PNPI-3 Circular Number 98-01 dated july 23, 1998. The secretary of the interior and Local Government is the final authority in the approval of the said de-listing. As a background, the inclusion of Mr. Delfin S. Lee in the list of wanted persons was by virtue of Memorandum Circular No. 2013-182 dated November 9, 2012 issued by the DILG.
Further, be assured that the PNP fully recognizes and acknowledges the Decision of the Court of Appeals promulgating that al government agencies tasked in the enforcement of the warrant of arrest against your client are enjoined from implementing the same.
Very truly yours,
ALAN LA MADRID PURISIMA
Police Director General
Republic of the Philippines
NATIONAL POLICE COMMISSION
PHILIPPINE NATIONAL POLICE
CRIMINAL INVESTIGATION AND DETENTION GROUP
Camp Crame, Quezon City
TO : ALL REGIONALS, SODS ID AND WAISS Chiefs
FROM : DIRECTOR, CIDG
SUBJECT : Recalled lifted and Quashed Warrant of Arrest against Delfin S. Lee in CC no. 18480
DATE : November 20, 2013
- Referral slip from CIDG with remarks Request Appropriate Action Request Dissemination and For info/ref/file dated Nov. 13, 2013
- Letter from atty. Willie Rivera dated Nov. 13, 2013
- Certification from court of Appeals dated Nov. 12, 2013; and
- Decision of Special Fifteenth (15th)Division, Court of Appeals, CA-G.R. SP no. 127553 promulgated on Nov. 07, 2013
This pertains to the letter from Atty. Willie b. Rivera, requesting the delisting and / or removal of the name of their client Mr. Delfin S. Lee from the PNP-CIDG list of Warrant of Arrest
Please be informed that the Court of Appeals Special 15thDivision promulgated a decision in CA G.R SP No. 127553 dated Nov. 07, 2013 the warrant of arrest issued against petitioner Delfin S. Lee is hereby QUASHED, RECALLED and LIFTEDthe Criminal Case No. 18480. Furthermore, all government agencies tasked in the enforcement of the paid warrant of arrest including but not limited to the Philippine National Police, National Bureau of Investigation and the Bureau of Immigration are immediately enjoined from implementing the same. Attached is the decision of the above court together with the certified true copy of the same for your perusal.
ITCON, you are hereby enjoined from implementing the warrant of arrest against Delfin S. Lee in so far as Criminal Case No. 18480 is concerned.
For Strict compliance.
BY THE AUTHORITY OF THE DIRECTOR, CIDG:
NVP BLESILDA E. DAGOGOY 12/6/13
ELISEO TAM RASCO, MPA
POLICE SENIOR SEPRINTENDENT (DSC)
CHIEF DIRECTORIAL POLICE
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