REPUBLIC OF THE PHILIPPINES

FOURTH JUDICIAL REGION

REGIONAL TRIAL COURT
BRANCH 77
SAN MATEO RIZAL

ACERHOMES DEVELOPMENT
CORPORATION represented
by ALAN A. MATIAS,
Plaintiff,

versus - CIVIL CASE NO. 2540-12

(MTC NO. 1010-1440)
For: EJECTMENT

ROSSANA E. BAROA,
Defendant.
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MEMORANDUM

Defendant, by counsel, respectfully submits her Memorandum,

and states:

TIMELINESS

On 20 September 2012, defendant’s counsel received a copy of the

Notice to file Memorandum of Appeal within fifteen (15) days from receipt

thereof, or until 5 October 2012.

Hence, it’s timeliness.

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 THE CASE

This is an appeal filed by the defendant from the Judgment of the

Municipal Trial Court of Rodriguez, Rizal dated 8 February 2012, the

dispositive portion of which states:

“WHEREFORE, judgment is rendered in favor of

plaintiff ACERHOMES DEVELOPMENT CORPORATION, INC.
and against defendant ROSANNA E. BAROA and all persons
claiming rights and interests under her, ordering the latter
to (a) PEACEFULLY VACATE and SURRENDER
POSSESSION of Lot 5, Block 15, Phase 1, located at
Eastwood Greenview, Barangay San Isidro, Rodriguez, Rizal;
(b) pay reasonable rental of PHP3,500.00 reckoned from the
filing of this complaint; (c) pay attorney’s fees of PHP
20,000.00, plus (d) the costs of suit.

SO ORDERED.”

PREFATORY STATEMENT

The ruling in favor of the plaintiff is tantamount to unjust

enrichment. Likewise, it is contrary to the tenets of Republic Act No.

6552 (The Realty Installment Buyer Protection Act), otherwise known as

the Maceda Law, its declared policy being, to protect buyers of real estate

on installment basis against onerous and oppressive conditions.

STATEMENT OF FACTS

On 28 December 2001, defendant reserved and paid to the plaintiff

the corresponding fee for a house and lot located at Phase I, Block 15,

Lot 5, Eastwood Greenview Subdivision, San Isidro, Rodriguez, Rizal.

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 After four (4) monthly payments of P14,500.00, or on 19 May 2002,

plaintiff and the defendant entered into a Contract To Sell involving said

property. As per the said Contract To Sell, the final contract price or cash

value of the said property is Five Hundred Eighty Thousand Pesos

(P580,000.00).

As of January 2005, the defendant already paid the total amount

of Three Hundred Fifty Seven Thousand Three Hundred Eighty Three &

87/100 (P357,383.87).

On 21 February 2005, the defendant received a Final Demand

from the plaintiff for her alleged failure to update her monthly

amortization. In said demand letter, the plaintiff clearly reminded the

defendant that her failure to settle her outstanding account shall result
in the cancellation of the Contract To Sell and the forfeiture of all

payments previously made in its favor.

Immediately upon receipt of said letter, defendant communicated

with the plaintiff but she was informed that the Contract To Sell had

been cancelled. Thus, on 15 March 2005, the defendant, through

counsel, sent a letter to the plaintiff questioning the premature

cancellation of the said contract.

Admittedly, defendant defaulted in some of her monthly

amortizations due to financial problems. However, she closely

coordinated with the plaintiff for the settlement of her arrears. This is

proven by the fact that on 24 May 2010, plaintiff sent a letter to the

defendant stating that the acceptable amount for full settlement of the

latter’s obligation is Five Hundred Sixty Thousand Pesos (P560,000.00).

When defendant was ready and willing to pay the amount of Five

Hundred Thousand Pesos (P500,000.00), plaintiff suddenly decided that

it will not accept any settlement with the former.

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 Thereafter, the plaintiff filed a complaint against the defendant

before the Housing and Land Use Regulatory Board (HLURB) on 21

September 2006. Such complaint was eventually dismissed on appeal on

26 March 2010.

On 22 October 2010, the plaintiff filed the instant complaint

alleging that the defendant has continuously refused to settle her

obligation.

ISSUES

I.

THE COURT A QUO COMMITTED A

REVERSIBLE ERROR INHOLDING THAT THE
INSTANT COMPLAINT IS FILED WITHIN THE
ONE-YEAR PERIOD.

II.

THE COURT A QUO ERRED IN HOLDING THAT

THERE WAS A CANCELLATION OF THE
CONTRACT TO SELL THUS, GIVING RISE TO
THE RIGHT OF THE PLAINTIFF TO CAUSE HER
JUDICIAL EVICTION FROM THE SUBJECT
PROPERTY.

III.

THE COURT A QUO COMMITTED AN ERROR

WHEN IT DID NOT CONSIDER AND APPLY THE
PROVISIONS OF REPUBLIC ACT NO. 6552 (THE
REALTY INSTALLMENT BUYER PROTECTION
ACT).

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 ARGUMENTS

I.
THE INSTANT COMPLAINT IS FILED BEYOND
THE ONE-YEAR REGLEMENTARY PERIOD.

In raising the lack of jurisdiction of the Honorable Municipal Trial

Court of Rodriguez, Rizal, defendant maintained that the complainant

sent a Final Demand Letter to the latter on 21 February 2005, or more

than five (5) years prior to the filing of the instant complaint on 22

October 2010.

However, in disposing the said issue, the court a quo made the

following pronouncements, to wit:

“On the question of the lack of jurisdiction posited by

defendant in that the instant suit was filed way beyond the
required one-year period, the court so holds that the
reckoning of said period is the last and final demand sent to
defendant, that is, on 16 September 2010 (see par. 8,
plaintiff’s complaint) and since the case was filed on 22
October 2010, which is well within the period, jurisdiction
over the subject matter is primarily lodged in all first level
courts.”

With all due respect, the court a quo utterly failed to consider the

fact that the complainant brought the instant complaint after its case for

Sum of Money (Non-Payment of Monthly Amortization) with Damages

before the HLURB on 21 September 2006 was dismissed on 26 March

2010 for lack of jurisdiction. In other words, the complaint for ejectment

was filed by the complainant only AFTER it did not succeed in its action

against the defendant before the HLURB.

Clearly, the sending of ANOTHER Demand Letter on 16

September 2010 is a mere attempt of the plaintiff to justify its filing of an

ejectment suit against the defendant.

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 II.
THERE IS NO CANCELLATION OR
RESCISSION OF THE CONTRACT TO SELL
DATED 19 MAY 2010 PURSUANT TO THE
PROVISIONS OF REPUBLIC ACT NO. 6552
(THE REALTY INSTALLMENT BUYER
PROTECTION ACT)

Considering that the second and third errors are inter-related, it

will be discussed jointly.

In finding that the plaintiff has the right to file the ejectment suit,

the court a quo posited that the Contract To Sell dated 19 May 2002 was

already cancelled upon the service to the defendant of a Notice of

Cancellation and To Vacate on 16 September 2010. Pertinently, the

Judgment states:

"Defendant's right to possession of the subject realty

is founded on a contract to sell executed by the parties on 19
May 2002 involving a house and lot located at Eastwood
Greenview Phase 1, Block 15, Lot 5, Brgy. San Isidro,
Rodriguez, Rizal, wherein plaintiff corporation is the
developer of said subdivision. When defendant allegedly
defaulted on her monthly amortizations reckoned from 5
May 2003, incurring an outstanding balance which had
already ballooned to PHP 1,199,407.39; thus, plaintiff
corporation on 16 September 2010 sent to herein defendant
a notarized Notice of Cancellation and to Vacate the subject
premises.

Verily, the cancellation of the contract to sell

executed by the parties is the correct remedy (Sta. Lucia
Realty & Development Inc. vs. Uyecio, et al., G. R. No.
176217, 13 August 2008) and her judicial eviction from the
subject premises is but a necessary consequence of
defendant's breach of her contractual obligations by her
failure to make good of her monthly amortizations even after
being given a 30-day grace period within which to fully settle
her account with the plaintiff corporation."

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 With all due respect, defendant strongly take exception to the

foregoing finding as the same is not accord with the facts and existing

laws and jurisprudence on the matter.

The transaction between the plaintiff and the defendant is that of a

sale of real estate on installment. It follows, therefore, that the Contract

To sell executed by the parties is governed by Republic Act No. 6552 (The

Realty Installment Buyer Protection Act, otherwise known as the Maceda

Law).

Section 3 (b) of R. A. No. 6552 provides that cancellation of contract

shall be done through service of notice of cancellation or demand for

rescission of the contract by notarial act and upon full payment of

the cash surrender value to the buyer.

In the case at bar, the records will bear that there is no cancellation

yet of the Contract To Sell between the parties. Firstly, because the

Notice of Cancellation and to Vacate is not a notarized document hence,

is not the same as the notice of cancellation or demand for rescission

required by by the foregoing provision. Secondly, defendant was never

paid by the plaintiff the cash surrender value of the house and lot she

purchased.

In the case of Active Realty & Development Corporation vs.

Necita G. Daroya, G. R. No. 141205, 9 May 2002, the Supreme Court

made the following pronouncements:

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 "The contract to sell in the case at bar is governed by
Republic Act No. 6552 -- "The Realty Installment Buyer
Protection Act, " or more popularly known as the Maced Law
-- which came into effect in September 1972. Its declared
policy is to protect buyers of real estate on installment basis
against onerous and oppressive conditions. The law seeks to
address the acute housing shortage problem in our country
that has prompted thousands of middle class and lower
class buyers of houses, lots and condominium units to enter
into all sorts of contracts with private housing developers
involving installment schemes. Lot buyers, mostly low
income earners eager to acquire a lot upon which to build
their homes, readily affix their signatures on these contracts,
without an opportunity to question the onerous provisions
therein as the contract is offered to them on a “take it or
leave it” basis. Most of these contracts of adhesion, drawn
exclusively by the developers, entrap innocent buyers by
requiring cash deposits for reservation agreements which
oftentimes include, in fine print, onerous default clauses
where all the installment payments made will be forfeited
upon failure to pay any installment due even if the buyers
had made payments for several years. Real estate developers
thus enjoy an unnecessary advantage over lot buyers who
they often exploit with iniquitous results. They get to forfeit
all the installment payments of defaulting buyers and resell
the same lot to another buyer with the same exigent
conditions. To help especially the low income lot buyers, the
legislature enacted RA No. 6552, delineating the rights and
remedies of lot buyers and to protect them from one-sided
and pernicious contract stipulations.

xxx xxx xxx

In this case, respondent has already paid in four (4)

years a total of P314,860.76 or P90,835.76 more than the
contract price of P2224,035.00. In April 1989, petitioner
decided to cancel the contract when the respondent incurred
in delay in the payment of P15,282.85, representing three (3)
monthly amortizations. x x x x x x In the case at
bar, respondent offered to pay for her outstanding
balance of the contract price but respondent refused to
accept it. Neither did petitioner adduce proof that the
respondent's offer to pay was made after the effectivity
dated stated in its notice of cancellation. Moreover,
there was no formal notice of cancellation or court
action to rescind the contact. Given the circumstances,
we find it illegal and iniquitous that petitioner, without
complying with the mandatory legal requirements for
canceling the contract, forfeited both respondent's land
and hard-earned money after she has paid for, not just
the contract price, but more than the consideration
stated in the contract to sell.

Thus, for failure to cancel the contract in accordance

with the procedure provided by law, we hold that the
contract to sell between the parties remains valid and

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 subsisting. Following Section 3 (a) of R.A. No. 6552,
respondent has the right to offer to pay for the balance
of the purchase price, without interest which she did in
this case. x x x " (Emphasis supplied)

Verily, the Contract To Sell dated 19 May 2002 not having been

cancelled or rescind, defendant can be considered to be illegally

withholding possession of the subject property. Consequently, the

plaintiff does not have a cause of action for Ejectment against her.

PRAYER

WHEREFORE, it is respectfully prayed of this Honorable Court to:

i. RECONSIDER, REVERSE and SET ASIDE the Judgment of the

Honorable Municipal Trial Court of Rodriguez, Rizal dated 8 February

2012, and

ii. Allowing the defendant to avail of the benefits of Section 3 (a) of

Republic Act No. 6552.

Defendant prays for other equitable reliefs.

Quezon City for San Mateo, Rizal, 4 October 2012.

BELTRAN APOSTOL & ASSOCIATES

LAW FIRM
Counsel for the Defendant

Unit 1007, 10th Floor, West Trade Center,

132 West Avenue, Quezon City
Tel. No.: (02) 416-4405

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 By:

SHELAMARIE M. BELTRAN
PTR # 6046606/01-03-12/Quezon City
IBP # 877739/01-04-12/Isabela Chapter
Roll No. 46332
MCLE Compliance No. III-0015230
Issued on 6 of May 2010

VERIFICATION AND CERTIFICATION OF

NON-FORUM SHOPPING

I, ROSANNA EUSEBIO-BAROA, Filipino, of legal age, married with

postal address at Block 15, Lot 5, Phase 1, Eastwood Greenview
Subdivision, Rodriguez, Rizal, subscribing under oath, depose and say:

1. I am the Defendant in the above-captioned case.

2. I caused the preparation of the foregoing Memorandum have

read the same, and attest that the allegations contained therein are true
and correct based on my personal knowledge and on authentic records
and documents in my possession.

3. I hereby certify that:

a. I have not commenced any other action or proceeding

involving the same issues in this Court, in the Court of Appeals,
the Supreme Court, or different Divisions thereof, or any other
tribunal or agency;

b. To the best of my knowledge, no such action or

proceedings is pending in this Court, the Court of Appeals, the
Supreme Court or different Divisions thereof, or any other tribunal
or agency; and

c. Should I, thereafter, learn that a similar action or

proceeding has been filed or is pending before this Court, the
Court of Appeals, the Supreme Court, or different Divisions
thereof, or any other tribunal or agency, I undertake to promptly
inform this Honorable Court and the above-mentioned courts and
such other tribunals of that fact within five (5) days therefrom.

IN WITNESS WHEREOF, I have hereunto set my hands this 4 th day

of October 2012 in Quezon City.

ROSANNA EUSEBIO-BAROA
Affiant

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 SUBSCRIBED AND SWORN to before me this 4th day of October
2012, affiant exhibited to me her __________________________, issued on
______________________ at _____________________ as competent proof of her
identity.

Doc. No.: _________;

Page No.: _________;
Book No.: _________;
Series of 2012.

COPY FURNISHED &

WRITTEN EXPLANATION:

ATTY. ROGELIO ADEVA MENDOZA

Suite 2503-2504, 25th Floor, Atlanta Center Building
No. 31 Annapolis Street
Greenhills, San Juan, M.M.

G r e e t i n g s:

Please be informed that a copy of the foregoing Memorandum was

served to the adverse counsel by registered mail due to lack of personnel
to effectuate personal service. This is in compliance with Section 11,
Rule 13 of the 1997 Rules of Civil Procedure.

SHELAMARIE M. BELTRAN

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