Republic of the Philippines National Capital Judicial Region METROPOLITAN TRIAL COURT CITY OF PARANAQUE BRANCH 77 xxxxxxxxxxxxxx, in her

capacity as attorney-In-Fact of Lucita M. Oblena Plaintiff, -versusCIVIL CASE NO. xxxxxxxx For: Sum of Money with Damages

xxxxxxxxxxxxxxxxx., Defendant. x----------------------------------------x COMMENT/OPPOSITION (To the Motion to Terminate Judicial Dispute Resolution and render Judgment on the Pleadings dated 15 May 2013)

Defendant, through the undersigned counsel, vehemently opposes the Motion to Terminate Judicial Dispute Resolution and Render Judgment on the Pleading and in support thereof states that: 1. Upon thorough review of the of the plaintiff's averment, the defendant respectfully submits that said motion filed by the plaintiff is bereft of merit. A. Defendant has offered his share in a lot in Quezon Province as payment of his obligation.

2. Plaintiff avers that the defendant failed to give a viable offer of settlement at the mediation at the PMC. Even granting without conceding that defendant has debt in favor of plaintiff, it is not true that the defendant failed to give viable offer settlement, in fact the defendant offers his lot located in the Quezon Province for the settlement of the allege debt, with the following options. a. By way of novation. Instead of paying of the allege amount of debt the defendant offers his shares to the above said lot or Under Article 1231 obligation is extinguished: xxxxxxxx (6) Novation xxxxxxxxxxx b. The defendant will look for the prospective buyer of the lot to pay for the allege obligation against the plaintiff.

B. Defendant raised a genuine issue in his answer. 3. Plaintiff likewise averred in his motion that the defendant fails to tender an issue or admitted the material allegation. the plaintiff anchor their second ground on section (1) of Rule 34 of Revised Rules of Procedure.
5. However it appears that the plaintiff is not cognizant of Article 1231 of the Civil Code in relation to section (1) paragraph (h) and section (6) of Rule 16 of Revised Rules of Procedure. which provides:

Article 1321. Obligations are extinguished:

xxxxxxxx (3) By condonation or remission of the debt; xxxxxxx Section (1) paragraph (h) and section (6) of Rule 16 (Motion to Dismiss): Sec. (1) par. (h). Grounds. (h) That the claim or demand set forth in the plaintiffs pleading has been paid, waived, abandoned, or otherwise extinguished: Sec.(6). Pleading grounds as affirmative defenses. If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may had thereon as if a motion to dismiss had been filed.

6. The defendant raised an affirmative defense in his Answer dated 22 Aug. 2012 specifically on par. 13 and par. 15 which states that the Plaintiff representative Araceli Araza stayed on the leased property together with her two (2) maids for a period beginning May 2008 to July 2009 and during the said stay Araza occupied two (2) of the four bedrooms in the subject property. Defendant paid for all expenses in the household, such as food, water and electricity among others without contribution from Araza, She even recived free medical services from defendants son. And that sometime in 2009, an oral agreement was made between Araza and defendant, wherein the latter is allowed to vacate the least property without paying the back rentals in consideration of aforesaid free board and lodging.

7. Even assuming that the defendant is indebted with the plaintiff, the defendant was able to raised a genuine issue in his answer and if it is prove, will cause the outright dismissal of the case. 8. Dizon v. Court of Tax Appeals, GR No. 140944, April 30, 2008

As a mode of extinguish of an obligation, condonation or remission of debts are defined as:

9. An act of liberality, by virtue of which, without receiving any equivalent, the creditor renounces the enforcement of the obligation. Which is extinguished in its entirety of in the part or aspect of the same to which the remission refers. It is essential characteristic of remission that it be gratuitous, that there is no equivalent received for the benefit given; once such equivalent exists, the nature of the act changes. It may become dation in payment when the creditor receives a thing different from that stipulated; novation, when the object or principal conditions of the obligation should be changed; or compromise, when the matter renounced is in litigation or dispute and in exchange of some concession which creditor 10. Moreover the plaintiff also overlooked the fact that a question on the Irregularity of Authority of Lucita M. Oblena has been specifically pointed out on the Answer of the defendant on par. (1.1) in which if proved, will also cause the outright dismissal of the case.

1.1

of the Answer with affirmative defenses made by the defendant. In fact, a review of the complaint and documents attached thereto show irregularities in authority of Cynthia Robino. To wit:

a. The special power of attorney was not acknowledged before a Philippine Consul. b. SPA was supposedly executed on July 8, 2011yet it was notarized only on September 30, 2011. c. SPA shows that the address of Lucita Oblena was at No. 3280 Bansalangin St. United Paranaque Subd. II, Paranaque City; however the authorization letter dated March 26, 2009 shows that she was residing in California, USA.
11. Under Rule 3, Section 2 of the rules of Court

A real party in interest is the party who stands to be benefited or injured by judgment in the suit, or the party entitled to avails of the suit. Unless otherwise authorized by law or by these rules, every action must be prosecuted or defended in the name of the real party in interest.

12. In granting the motion of the plaintiff, it will defeat the defendants right to be heard, present his case and evidence which is very vital to the latters Right to Due Process. 13. Furthermore, the issue raised by the defendant in this case involves is meritorious and if once prove, will cause the dismissal of the complaint.

PRAYER Wherefore, premises considered, it is respectfully prayed to this honorable court that the Motion to Terminate the Judicial Dispute Resolution and Render Judgment on the Pleading be denied for lack of merit.

OTHER RELIEFS, as are just and equitable in the opinion of this Honorable Court are likewise prayed for.

Respectfully submitted.

Pasay City for Paraaque City, August 28, 2013.

ARELLANO UNIVERSITY SCHOOL OF LAW OFFICE OF THE LEGAL AID Counsel for the Defendant Arellano University School of Law Taft Avenue Cor. Menlo St., Pasay city

By:

ROBERTO RAFAEL J. PULIDO Director, Office of the Legal Aid Arellano University School of Law IBP No. 913395 / 01-02-13 / Makati City PTR No. 8048526 / 01-02-13 / Pasig City Roll No. 43981

MCLE Comp. No. IV-001996315 / 05-07-13

FRANCIS R. DOBLE IBP No. 913464 / 01-02-2013 / RSM PTR No. 8048527 / 01-02-2013 / Pasay City ROLL No. 58631 MCLE Comp. No. IV-00134330 / 0306-2013 Copy furnished: ATTY. AUGUSTO P. FERMO Counsel for Plaintiff Unit 504, The Center Point Condominium Building, Dona Julia Vargas Avenue cor. Garnet Road Ortigas Center, Pasig City 1605

EXPLANATION The original copy of the motion in which this explanation is attached was: 1. Filed with this Honorable Court by registered mail; 2. Sent to the counsel of the adverse party also by registered mail;

Due to the following reasons: 1. The distance from the office of the counsels for both parties which makes personal service impracticable; 2. Lack of personnel to effect personal service; and 3. Time constraints.

ATTY. FRANCIS R. DOBLE