TRIAS, Antoniella Luisa Maria L.

19 May 2017
3A | 14 242 Atty. Howard Calleja

Republic of the Philippines

SUPREME COURT
Manila

FRANCISCO LACHOWSKI,
Petitioner,
CIVIL CASE NO.
R-QZN-14-10666-CV
-versus- For: Sum of Money

ANTON JUAN LUNA and CHERRY

BLOSSOM YU,
Respondent.

X ------------------------------------------------ X

PETITION FOR REVIEW

(under Rule 45)

PETITIONER, by counsel and to this Honorable Court,

respectfully alleges:

NATURE OF THE CASE

This is a petition for review pursuant to Rule 45 of the Rules of

Court of the decision of the Regional Trial Court of Makati, Branch 32,
entitled Francisco Lachowski v. Anton Juan Luna and Cherry Blossom Yu,
which dismissed plaintiff's (now petitioner's) complaint, upon defendant's
(now respondent's) complaint on the ground that there was no valid service
of summons on defendants hence, the lower court did not have jurisdiction
over the persons of the defendants. Only questions of law are raised, there
being no factual issues involved.

THE PARTIES

Petitioner, FRANCISCO LACHOWSKI, is of legal age and is the

plaintiff in said Civil Case No. 2014-12, RTC BR. 32, Makati City.

Respondents, ANTON JUAN LUNA and CHERRY BLOSSOM

YU, are also of legal age and is the defendant in Civil Case No. 2014-12,
RTC Br. 32, Makati City. He may be served with legal process through his
TRIAS, Antoniella Luisa Maria L. 19 May 2017
3A | 14 242 Atty. Howard Calleja

counsel, Atty. Rafayelle Regis, with office address at S and A Building, Juan
Luna St., Makati City.

TIMELINESS OF THE PETITION AND

STATEMENT OF MATERIAL DATES

On April 20, 2015, petitioner received copy of the decision of the

RTC BR. 32 of Makati City in Civil Case No. 2014-12. Certified true copy of
said decision is attached hereto as ANNEX "A".

On April 29, 2015 or within the 15-day period from receipt of said
decision stated in ANNEX "B", petitioner filed his motion for reconsideration
of said decision, copy of which motion for reconsideration is attached hereto
as ANNEX "B".

On May 1, 2015, petitioner received a copy of the order of the

trial court denying said motion for reconsideration. Certified true copy of said
order is attached hereto as ANNEX "C".

This instant petition is filed within the 15-day period from receipt
on May 1, 2015 denying the motion for reconsideration. That on this day, or
on due time, and within the period allowed by the Rules to file a Petition for
Review under Rule 45 of the 1997 Rules of Civil Procedure, petitioners filed
this instant Petition for Review and corresponding (a) Courts Docket, legal
and research fees, and the necessary (b) Deposit for costs has been paid by
the petitioners, under Official Receipt No. (s) 5305249 B, 5312567 C, &
7781146 T.

STATEMENT OF FACTS AND THE CASE

The factual background and proceedings are as follows:

1. Francisco Lachowski is a Filipino, of legal age, and resident of 6757

Forbes Park, Makati City; Anton Juan Luna and Cherry Blossom Yu
are also a Filipino and lawfully married to each other, of legal age
and resident of Unit 2003, 20th floor, One Rockwell East Tower,
Rockwell Drive, Makati City, where he may be served with
summons and other processes;

2. On March 2, 2010, Luna borrowed One Million Two Hundred

Thousand Pesos (P1, 200,000) in cash from Lachowski. Luna
promised to pay the amount on a monthly installment basis for one
(1) year.

3. On the same day, Luna executed, signed and delivered in favor of

Lachowski, a promissory note for P120, 000 for his first installment
TRIAS, Antoniella Luisa Maria L. 19 May 2017
3A | 14 242 Atty. Howard Calleja

payment. The pertinent provisions of the Promissory Note is

attached as ANNEX D.

4. On October 30, 2010 Luna defaulted on two (2) monthly installment.

On the same day, Lachowski went to the house of Luna and
personally gave his first demand letter, but the same remained
unheeded.

5. During the Forbes Park Christmas Party on December 18, 2010,

both the plaintiff and defendant met again. The plaintiff handed the
second demand letter during the event. However, the defendant still
failed to pay the amount due to plaintiff.

6. Despite the personal and repeated demands, both oral and written,
defendant failed or has refused to pay any amount to plaintiff. A
copy of each of plaintiffs two (2) demand letters is attached as
ANNEX E and F.

7. Defandants obligation is due and demandable and plaintiff is

entitled to the payment of the entire amount of One Million Two
Hundred Thousand Pesos (1,200,000) plus legal interest until the
sum is fully paid.

8. By reason of defendants unreasonable failure or refusal to pay his

due and demandable obligation, plaintiff was forced to engaged the
services of counsel to vindicate his rights thereby committing
himself to pay legal expenses amounting to One Hundred Thousand
Pesos (P100,000).

9. On March 1, 2015, Petitioner filed a collection for sum of money

case against the respondent before the RTC Br. 32, Makati City and
was docketed as Civil Case No. 2014-12, herein attached as
ANNEX "G";

10. On April 1, 2015, the RTC Br. 32 released a judgment ruling in

favor of respondent on the ground of lack of jurisdiction over the
persons of the respondents, which petitioner received on April 1,
2015, which decision is herein attached as ANNEX "A";

11. On May 17, 2015, petitioner filed this instant petition for review
under Rule 45 of the 1997 Rules of Civil Procedure.

ASSIGNMENT OF ERRORS

PETITIONERS, conformably to the nature of the instant Petition and out of

the issues taken, hereby present the following ground in support of and relied
upon for the allowance of the instant Petition:
TRIAS, Antoniella Luisa Maria L. 19 May 2017
3A | 14 242 Atty. Howard Calleja

I. THE TRIAL COURT ERRED WHEN IT GRANTED THE MOTION

FOR RECONSIDERATION OF THE RESPONDENT FOR FAILURE OF
PETITIONER TO CITE A CAUSE OF ACTION.

II. THE TRIAL COURT ERRED WHEN IT DISMISSED THE

COMPLAINT ON THE GROUND OF LACK OF JURISDICTION OVER
RESPONDENTS FOR LACK OF A VALID SUBSTITUTED SERVICE OF
SUMMONS.

III. THE TRIAL COURT ERRED WHEN IT DID NOT GIVE

COGNIZANCE TO THE DOCUMENTARY EXHIBITS PRESENTED BY
PETITIONER CLEARLY SHOWING THE OBLIGATIONS UNDER WHICH
RESPONDENT SUBJECTED HIMSELF TO.

DISCUSSION

Petitioner satisfactorily supplied

the complaint for sum of money
with a valid cause of action

1. On March 1, 2015, herein petitioner received the order to the

Regional Trial Court, Br. 32 of Makati City denying the latter's complaint and
agreeing with respondents contention that petitioner failed to cite cause of
action. On March 25, 2015, petitioner filed a motion for reconsideration over
the same which the trial court denied in its order received by petitioner on
April 1, 2015.

2. Despite diligent efforts made by petitioner to secure all the proper

documents to support his interests and to demand payment from
respondent, the trial court ruled in favor of the latter, causing great prejudice
to the rights of herein petitioner. Being that no other plain, speedy or
adequate remedy is available, this petition was hereby availed of.

3. The respondent failed to pay the loan third and last installment of
the loan due on February 15, 2015 as stipulated in the Promissory Note and
duly signed by the respondent.

4. The petitioner's rights to his property were violated when the trial
court ignored the substantial and overwhelming evidence against the
respondent - contrary to Articles 19, 20 and 21 of the New Civil Code.

The Court had jurisdiction over

the persons of the defendants
through a valid substituted
service of summons

1. Upon filing of the complaints, summons was issued. According to the

Sheriff's return, Sheriff Elbert Mariano attempted to personally serve the
TRIAS, Antoniella Luisa Maria L. 19 May 2017
3A | 14 242 Atty. Howard Calleja

summons upon Anton Juan Luna and Cherry Blossom Yu in their residence
and other places where they were found on three dates but it was unavailing
as they were always out of the house on said dates. They also refused to
accept the same when they were found in their doorstep. Hence, the Sheriff
caused substituted service of summons by serving the same through Antons
sister who acknowledged receipt thereof.

2. For their failure to file within the prescribed period, Francisco

Lachowski filed an ex parte motion to declare Anton Juan Luna and Cherry
Blossom Yu in default which was granted by the RTC. On February 28, 2015,
Anton Juan Luna and Cherry Blossom Yu filed an Urgent Motion to Set Aside
Order of Default maintaining that they did not receive the summons and/or
was not notified of the same. RTC denied Anton Juan Luna and Cherry
Blossom Yus motion which was reversed by the Court of Appeals due to
invalid and ineffective substituted service of summons.

3. The Return of Summons does not specifically show or indicate in detail

the actual exertion of efforts or any positive step taken by the officer or
process server in attempting to serve the summons personally to the
defendant. The return merely states the alleged whereabouts of the
defendant without indicating that such information was verified from a person
who had knowledge thereof. Section 20, Rule 14 of the Rules of Court
states "The defendant's voluntary appearance in the action shall be
equivalent to service of summons. Their active participation in the case at
bar through their counsel precludes them from asserting lack of jurisdiction
over their persons.

Petitioner is entitled to a relief

prescribed by law upon showing
sufficient documentary evidence
clearly showing the obligations
of respondent

1. From a review of all the attached documents herein through the

Annexes, it can clearly be seen that petitioner is entitled to the unpaid
obligations of respondents. Their pecuniary liability is clearly established.
Respondents cannot, through other means and ways, avoid their liability
towards petitioners.

PRAYER

WHEREFORE, premises considered, it is most respectfully

prayed of the Honorable Court that judgment be rendered in favor of the
petitioner and for the grant of the following:

1. That the petition be given due course;

TRIAS, Antoniella Luisa Maria L. 19 May 2017
3A | 14 242 Atty. Howard Calleja

2. That after due proceedings, judgment be rendered setting

aside the questioned decision and ordering Annex "H" hereof
be set aside and a new one be rendered.

3. Ordering the respondent to pay the petitioner the following

sums:

a. The amount of ONE MILLION AND FIFTY THOUSAND

PESOS (1,050,000), Philippine Currency,
representing respondent's Outstanding Loan Balance,
inclusive of interest at the rate of two percent (5%) per
annum as stipulated in the Contract of Lease;

b. Costs of suit.

4. Petitioner likewise prays for other reliefs deemed just and

equitable in the premises are similarly prayed for.

Makati City, Philippines. May 18, 2015.

ALEGRE LUNA TRIAS LAW OFFICE

Counsel for Defendant
20th Floor, One Corporate Center
139 Valero corner Sedeo Sts., Salcedo Village,
Makati City 1227, Metro Manila, Philippines
Tel. Nos. 5543351-54 5543734-35 51884833 5154986
Fax No. (632) 5166741 E-mail address: attorneys@bellolaw.com

By:

ANTONIELLA LUISA MARIA L. TRIAS

Roll of Attorneys No. 3063963
P.T.R. No. 3524167, 01/04/2016, Makati City
I.B.P. Lifetime Member No. 02031, Makati Chapter
M.C.L.E. Compliance No. V-00020090, 04/01/15

VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING

I, FRANCISCO LACHOWSKI, of legal age, after having been duly

sworn, deposes and states that:
1. I am the petitioner in the above stated case;
TRIAS, Antoniella Luisa Maria L. 19 May 2017
3A | 14 242 Atty. Howard Calleja

2. I have caused the preparation of the said complaint for collection of

sum of money with damages;
3. I have read the contents thereof and the facts stated therein are true
and correct of my personal knowledge and/or on the basis of the
documents and records in my possession;
4. I have not commenced any other action or proceeding involving the
same issues in the any tribunal, agency or body;
5. To the best of my knowledge and belief, no such action or
proceeding is pending before any tribunal, agency or body;
6. If I should thereafter learn that a similar action has been filed before
any tribunal, agency or body, I undertake to report that fact within
five (5) days therefrom to this Honorable Court.

Executed this 10TH day of May 2015 at Makati City, Philippines.

FRANCISCO LACHOWSKI
Affiant
T.I.N. 216-777-222, Makati City

SUBSCRIBED AND SWORN to before me, this 10th day of May 2015,
affiant exhibiting to me his Tax Identification Card as shown above below her
name as competent evidence of his identity.

ATTY. KERBY ENABORE

Counsel for Plaintiff
Roll No. 5000
IBP No. 011 Lifetime
PTR No. 70 - 1/2/14 Leyte
MCLE Compliance IV No. 001234
Issued on January 12, 2013

Doc. No. 1;
Page No. 2;
Book No. II;
Series of 2015.
TRIAS, Antoniella Luisa Maria L. 19 May 2017
3A | 14 242 Atty. Howard Calleja

EXPLANATION
(Pursuant to Section 11, Rule 13 of the
1997 Revised Rules of Civil Procedure)

Due to lack of personnel to effect personal service, service was made

by registered mail upon the parties as hereinafter indicated by the
corresponding registry receipts.

ANTONIELLA LUISA MARIA L. TRIAS

COPY FURNISHED:

BELLO LAW FIRM

Counsel for Petitioner
17th Floor, One Global Place
Fifth Avenue, Bonifacio Global City
Taguig City 1634, Philippines