EN BANC
A.M. No. P-13-3113, August 02, 2016
ROSEMARIE GERDTMAN, REPRESENTED BY HER SISTER AND ATTORNEY-IN-FACT, ROSALINE LOPEZ BUNQUIN, Complainant, v. RICARDO V. MONTEMAYOR, JR., SHERIFF IV, OFFICE OF THE PROVINCIAL SHERIFF, CALAPAN CITY, PROVINCE OF ORIENTAL MINDORO, Respondent.
D E C I S I O N
PER CURIAM:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered for the plaintiff and against the defendants ordering them and all persons claiming rights under them to vacate and surrender possession of the subject premises to the plaintiff, as well as, to pay the following:On January 18, 2000, Mingay filed a Motion for Immediate Execution of Judgment.6 The MCTC issued a Writ of Execution7 on January 27, 2000 (2000 Writ). Defendants did not appeal the MCTC Decision but filed Civil Case No. R-4846 instead, a petition for annulment of judgment of the MCTC Decision in Civil Case No. 299. It was filed before Branch 40 of the Regional Trial Court (RTC) of Calapan City.8 This halted the enforcement of the 2000 Writ, with the RTC restraining its enforcement for 20 days.9 Eventually, in the Return10 he filed, Sheriff Jaime V. Abas (Sheriff Abas) reported that a Notice of Levy on a land owned by complainant and covered by Transfer Certificate of Title (TCT) No. T-32779 was registered on March 1, 2000 with the Register of Deeds of Calapan City.11chanrobleslaw1. For Defendant Rosemarie Lopez Gerdtman, to pay Plaintiff the amount of SEVEN HUNDRED SIXTY THOUSAND FIVE HUNDRED FORTY-SEVEN PESOS (P760,547.00) in satisfaction of the accrued rentals with escalation rate of TEN PERCENTUM (10%) per annum from January 06, 1988 up to and including December 31, 1999 and thereafter to pay the sum of EIGHT THOUSAND FIVE HUNDRED FIFTY-SEVEN PESOS (P8,557.00) as monthly rental beyond December 31, 1999 until she vacates the premises in question;SO ORDERED.5
2. For Defendants Antero Lopez, Rosemarie Lopez Gerdtman and Rosalyn Lopez Bunquin, to pay jointly and severally Plaintiff the sum of SEVEN THOUSAND TWO HUNDRED PESOS (P7,200.00) as rentals for nine (9) months during the period covering the implied new lease;
3. For all the Defendants, to pay jointly and severally the Plaintiff the amount of TWENTY THOUSAND (P20,000.00) as attorney's fees; and[]
4. Costs of suit. []
a) [T]he purported notice of auction sale was personally served by Sheriff Montemayor not on us but on a certain Dhorie dela Cruz who is not even the addressee and whose name was merely printed without any indication whether she did really receive it and on what day and time did she receive it, copy of which is hereto attached as ANNEX "G". The purported notice is clearly fabricated. Consequently, we were not duly notified of the scheduled auction sale, if such was scheduled, to enable us to take part, all in violation oTour right to due process and Section 15 (d), Rule 39, Revised Rules of Court;Complainant avers that since the land was sold over and above the monetary judgment, Sheriff Montemayor made it difficult for her to redeem the land within the one (1) year redemption period. As a result, Mingay was able to cause the cancellation of complainant's title.
b) Aside from the absence of due written notice of the auction sale on us, there is nothing on record which will show strict compliance with the requirements of Section 15 (c);
c) [B]ased on the minutes of public auction sale, only one (1) bidder took part in the bidding, Emilio Mingay, in flagrant violation of A.M. 99-.1005-SC requiring at least two (2) participating bidders to which Sheriff Montemayor cannot profess ignorance, copy of which is hereto attached under caption PRESENT as ANNEX "H";
d) [A]ssuming arguendo that the public auction sale where Emilio Mingay supposedly bidded for PhP5,000,000 or in excess of the minimum bid of PhP2,600,00[0 ] was valid, Sheriff Montemayor, for reasons of his own, did not promptly deliver to my sister, the excess proceeds amounting to PhP2,400,000 in willful transgression of Section 19 of Rule 39 giving a ground for reasonable suspicion that Sheriff Montemayor pocketed or misappropriated the excess amount, to our great damage and prejudice.
Sec. 15. Notice of sale of property on execution. — Before the sale of property on execution, notice thereof must be given as follows:In Villaceran v. Beltejar,35 we ruled that requirements for execution sales under Rule 39 of the Rules must be strictly complied with.36 The Rules require personal service of the notice to ensure that the judgment obligor will be given a chance to prevent the sale by paying the judgment debt sought to be enforced.37 If only Sheriff Montemayor personally served the notice, there would be no question on who "Dhorie dela Cruz" is and there would be no issue on whether the complainant has knowledge of the sale.38chanrobleslaw
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(d) In all cases, written notice of the sale shall be given to the judgment obligor, at least three (3) days before the sale, except as provided in paragraph (a) hereof where notice shall be given at any time before the sale, in the same manner as personal service of pleadings and other papers as provided by Section 6 of Rule 13. (Emphasis ours.)
Sec. 19. How property sold on execution; who may direct manner and order of sale. — All sales of property under execution must be made at public auction, to the highest bidder, to start at the exact time fixed in the notice. After sufficient property has been sold to satisfy the execution, no more shall be sold and any excess property or proceeds of the sale shall be promptly delivered to the judgment obligor or his authorized representative, unless otherwise directed by the judgment or order of the court. When the sale is of real property, consisting of several known lots, they must be sold separately; or, when a portion of such real property is claimed by a third person, he may require it to be sold separately. When the sale is of personal property capable of manual delivery, it must be sold within view of those attending the same and in such parcels as are likely to bring the highest price. The judgment obligor, if present at the sale, may direct the order in which property, real or personal, shall be sold, when such property consists of several known lots or parcels which can be sold to advantage separately. Neither the officer conducting the execution sale, nor his deputies, can become a purchaser, nor be interested directly or indirectly in any purchase at such sale. (Emphasis ours.)On the other hand, Section 8, Rule 142 of the Rules provides how costs of suit are taxed:
Sec. 8. Costs, how taxed. — In inferior courts, the costs shall be taxed by the justice of the peace or municipal judge and included in the judgment. In superior courts, costs shall be taxed by the clerk of the corresponding court on five days' written notice given by the prevailing party to the adverse party. With this notice shall be served a statement of the items of costs claimed by the prevailing party, verified by his oath or that of his attorney. Objections to the taxation shall be made in writing, specifying the items objected to. Either party may appeal to the court from the clerk's taxation. The costs shall be inserted in the judgment if taxed before its entry, and payment thereof shall be enforced by execution. (Emphasis ours.)Instead of returning the excess amount from the auction sale to complainant as required in the Rules, Sheriff Montemayor allegedly applied it to the costs of suit. However,"he failed to exhibit proof that the 2008 Writ directed him to make such application. He also did not present a court-approved computation of the costs of suit. Rather than showing the legal basis for his actuation, Sheriff Montemayor took refuge on the letter of Mingay's wife. Thus, in his Comment before us, he stated:
With respect to complainant's allegation that he [pertaining to himself] should have delivered to her sister [the complainant] the excess proceeds of the auction sale as the alleged minimum bid representing the accrued rentals and attorney's fees is only P2,600,000.00, the undersigned Sheriff asserts that there were no excess proceeds to deliver because of the costs of suit that should be paid by the complainant, her sister and their co-defendnat Antero Lopez. As a matter of fact the bid price of P5,000,000.00 is considered too small an amount and even short compared to the amount of P16,935,737.00 total payment being demanded by Emilio Mingay from Bunquin, her sister and their co-defendant Antero Lopez as decided by the court in Civil Case No. 299. A copy of the letter dated February 18, 2009 x x x sent to the Office of the Clerk of Court and Ex-Officio Sheriff, RTC, Calapan City by Flordeliza P. Mingay, wife of Emilio Mingay is hereto attached.41 (Emphasis ours.)By his own words, Sheriff Montemayor casts doubt on his trustworthiness and propriety as an officer of the court. To our mind, Sheriff Montemayor allowed himself to be swayed or influenced by the letter of Mingay's wife who demanded PI,800,000.00 as costs of suit,42 and which amount was not reflected in the 2008 Writ. The conduct of Sheriff Montemayor betrayed the foremost duty of sheriffs to execute the order of the court strictly to the letter. Sheriffs are under obligation to perform their duties honestly, faithfully and to the best of their ability; they must conduct themselves with propriety and decorum, and above all else, be above suspicion. 43chanrobleslaw
Endnotes:
* Justice Velasco inhibited due to his relation to one of the parties.
1Rollo, pp. 1-9.
2Emilio Mingay v. Antero Lopez, Rosemarie Lopez Gerdtman and Rosalyn Lopez Bunquin, id at 14.
3Id. at 14-15.
4Id. at 14-18. Penned by Judge Designate Manolo A. Brotonel.
5Id. at 17-18.
6Id. at 321.
7Id. at 322-324.
8Id. at 19, 21.
9Id. at 281.
10Id. at 281-282.
11Id. at 283-287.
12Id. at 67, 281.
13Id. at 281.
14Id. at 19-26.
15Id. at 27.
16Id. at 325-326.
17Id. at 327-329.
18Id. at 3-4.
19Id. at 266-269.
20 Titled Rosalyn Lopez Bunquin, for Herself and as Attorney-in-Fact for Rosemarie Gerdtman v. Emilio Mingay, Sheriff Ricardo V. Montemayor, Jr., and the Register of Deeds of Calapan City, Province of Oriental Mindoro. Id. at 270-274.
21 Titled Rosemarie Gerdtman, Reperesented by her Sister and Attorney-in-Fact, Rosaline Lopez Bunquin v. Sheriff Richard Montemayor, Office of the Provincial Sheriff, Calapan City, Province of Oriental Mindoro. Id. at 275-280.
22Id. at 267.
23Id. at 268.
24Id.
25cralawred Id.
26Id.
27Rollo, pp. 268-269.
28Id. at 248-254.
29Id. at 252-253.
30Id. at 251.
31Id. at 298-308.
32Id. at 304-306.
33Id. at 304.
34Id. at 308.
35 A.M.No. P-05-1934, April 11, 2005,455 SCRA 191.
36Id. at 196-198.
37Venzon v. Juan, G.R. No. 128308, April 14, 2004, 427 SCRA 237, 243-244.
38Rollo, p. 3.
39Id. at 292.
40 REVISED RULES OF COURT, Rule 39, Sec. 15.
41Rollo, pp. 268-269.
42Id. at 295-297, letter from Flordeliza P. Mingay to the Office of the Clerk of Court & Ex-Officio Sheriff of RTC, Calapan City, dated January 18, 2009.
43Musngi v. Pascasio, A.M. No. P-08-2454, May 7, 2008, 554 SCRA 1,13 citing Letter of Atty. Socorro M. Villamer-Basilla, Clerk of Court V, RTC, Branch 4, Legaspi City, A.M. No. P-06-2128, February 16, 2006, 482 SCRA 455, 459. (Emphasis ours.)
44Eduarte v. Ramos, A.M. No. P-94-1069, November 9, 1994, 238 SCRA 36, 40 citing Young v. Momblan, A.M. No. P-89-367, January 9, 1992, 205 SCRA 33. See also Del Rosario v. Bascar, Jr., A.M. No. P-88-255, March 3, 1992, 206 SCRA 678.
45Alconera v. Pallanan, A.M. No. P-12-3069, January 20, 2014, 714 SCRA 204, 217.
46 A.M. No. P-00-1392, July 13, 2000, 335 SCRA 513.
47Id. at 514.
48 Pursuant to Section 46 (A) (3), Rule 10 of the Revised Rules on Administrative Cases in the Civil Service, the offense of "grave misconduct" is punishable by dismissal from service on the first offense.
49Alconera v. Pallanan, supra. (Emphasis ours.)
50Pineda v. Torres, A.M. No. P-12-3027, January 30, 2012, 664 SCRA 374, 379.
51Villaceran v. Beltejar, supra note 35 at 201 citing Paner v. Torres, A.M. No. P-01-1451, February 28, 2003, 398 SCRA 381.
52 A.M. No. 03-06- 13-SC, June 1, 2004.
53 Section 6, Canon IV, Code of Conduct for Court Personnel.
54Cañada v. Suerte, A.M. No. RTJ-04-1884, February 22, 2008, 546 SCRA 414, 424 citing Re: (1) Lost Checks Issued to the Late Roderick Roy P. Melliza, Former Clerk 11, MCTC, Zaragga, Iloilo and (2) Dropping from the Rolls of Ms. Esther T. Andres, A.M. No. 2005-26-SC, November 22, 2006, 507 SCRA 478, 497 also citing Re: Administrative Case for Dishonesty Against Elizabeth Ting, Court Sec. 1 & Angelita C. Esmerio, Clerk III, Off. Clerk of Court, A.M. Nos. 2001-7-SC & 2001-8-SC, July 22, 2005, 464 SCRA 1.
55 Resolution, A.M. No. P-09-2719, November 23, 2009.
56 Section 46 (B) (8), Rule 10 of the Revised Rules on Administrative Cases in the Civil Service.
57 See Beltran v. Monteroso, A.M. No. P-06-2237, December 4, 2008, 573 SCRA 1.
58Olivan v. Rubio, A.M. No. P-12-3063, November 26, 2013, 710 SCRA 590, 606 citing Marcos v. Pamintuan A.M. No. RTJ-07-2062, January 18, 2011, 639 SCRA 658, 669.