REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
CEBU CITY
__ DIVISION

LEBRON JAMES,
Petitioner,
CA–G.R.No. ________________
-versus-
For: CERTIORARI under
HON. DEMAR DEROZAN, RULE 65
Presiding Judge of the
Regional Trial Court of Cebu
City, Branch 15, and
STEPHEN CURRY,
Respondents.

x---------------------------------------x

PETITION FOR CERTIORARI

Petitioner LEBRON JAMES, through undersigned counsels

and unto this Honorable Court, most respectfully states THAT:

PREFATORY STATEMENT

Article III, Section 1 of the 1987 Philippine Constitution

explicitly states that “no person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be
denied the equal protection of the laws.” Due process dictates that
a person must be informed of any action or proceeding which
affects his or her life, liberty, or property. Prior to dispensing with
a case, a court must first acquire jurisdiction over three things:
the parties, the res, and the issues.
Page 1 of 36
 The methods of acquiring jurisdiction over the parties are
contained in the Rules of Court. These were painstakingly
conceived in order to guarantee the orderly dispensation of justice.
Unjustifiably relegating these to the periphery by arguing that
their imposition would impede substantial justice smacks of
inadvertence, negligence, and even malice.

I. NATURE AND TIMELINESS OF THE PETITION

1.1. This is a special civil action for certiorari under Rule 65 of the
Revised Rules of Court, praying to annul and set aside the
Decision dated February 14, 2019 rendered by the Regional Trial
Court of Cebu City, Branch 15 in Civil Case No. 12345, as well as
its February 27, 2019 Order denying Petitioner’s Motion for
Reconsideration.

1.2. With all due respect, Petitioner submits that Public

Respondent acted with grave abuse of discretion amounting to
lack or excess of jurisdiction in denying the duly filed Motion for
Reconsideration of its judgment by default.

1.3. There is no appeal or any other plain, speedy, and adequate

remedy available to Petitioner in the ordinary course of law to
obtain relief from the questioned denial of public respondent,
except through this Petition.

1.4. On February 14, 2019, the Regional Trial Court—through

presiding Judge Demar Derozan—rendered the assailed Decision,
a certified true copy of which is hereto attached as Annex “A” .
Petitioner received a copy of the Decision on February 20, 2019.

1.5. On February 25, 2019, before the judgment became final and
executor, Petitioner filed his Motion for Reconsideration.

1.6. On March 1, 2019, Petitioner received an official copy of the

order dated February 28, 2019, which denied his Motion for
Reconsideration. Hence, Petitioner has sixty (60) days, or until
May 4, 2019 to file the present Petition under Rule 65 of the
Revised Rules of Court. A certified true copy of the Order is
attached hereto as Annex “B”.

Page 2 of 36
 II. THE PARTIES

2.1. Petitioner LEBRON JAMES (herein referred to as

“Petitioner”) is a Filipino of legal age, single, and currently
residing at House 5, St. Patrick Street, Silver Hills Subdivision,
Nasipit Road, Talamban, Cebu City. He may be served with
notices and other legal processes of this Honorable Court in care of
undersigned counsels;

2.2. Public Respondent HONORABLE DEMAR DEROZAN (herein

referred to as “Public Respondent”) is being impleaded herein in
his official capacity as the Presiding Judge of the Regional Trial
Court of Cebu City - Branch 15. He may be served with notices
and other legal processes of this Honorable Court at the RTC-
Branch 15, Cebu City Hall of Justice - Quimonda IT Center, Cebu
City.

2.3. Private Respondent STEPHEN CURRY (herein referred to as

“Private Respondent”), of legal age, Filipino, married, and
currently residing at House 20, Happiness Street, Maria Luisa
Subdivision, Banilad, Cebu City. Under Section 5 of Rule 65 of the
Revised Rules of Court, it is the duty of herein Private Respondent
to appear and defend both in his behalf and in behalf of the public
respondent. He may be served with notices and other legal
processes of this Honorable Court in care of his counsel on record.

III. BRIEF STATEMENT OF FACTS

3.1. On January 23, 2019, Private Respondent filed a complaint

for Collection of Sum of Money against Petitioner before the
Regional Trial Court of Cebu City, Branch 15. Docketed as Civil
Case No. 19-3456, a certified true copy of the complaint is hereto
attached as Annex “C”.

3.2. On February 2, 2019, the sheriff went to Petitioner’s address

and was informed that the latter vacationing in Palawan. The
sheriff proceeded to leave a copy of the summons with CARDO

Page 3 of 36
DALISAY (herein referred to as “Dalisay”), Petitioner’s houseboy.
These facts are described in the Proof of Service, a certified true
copy of which is hereto attached as Annex “D”.

3.3. On the date he was given the copy of the summons, Dalisay
was a minor, being merely thirteen (13) years old. This is
evidenced by his Certificate of Live Birth, a certified true copy of
which is hereto attached as Annex “E”.

3.4. Dalisay lost the copy of the summons while doing his chores.
Afraid of punishment, he did not inform Petitioner of the
summons. Consequently, Petitioner was not aware that there was
a case filed against him and, thus, did not file an Answer.

3.5. On February 10, 2019, Private Respondent filed a Motion to

Declare Petitioner in default. This was granted by Public
Respondent in an Order dated February 13, 2019, which allowed
the Private Respondent ex parte. On DATE, Public Respondent
rendered the first assailed Decision (see Annex “A”).

3.6. On February 25, 2019, Petitioner immediately filed a Motion

for Reconsideration, questioning the decision to declare him in
default despite the failure to follow the rules on service of
summons. A copy of this Motion is hereto attached as Annex “H”.

3.7. Unfortunately, in an Order dated February 28, 2019, Public

Respondent denied Petitioner’s Motion for Reconsideration (See
Annex “B”).

3.8. Hence, Petitioner filed this present Petition for Certiorari.

IV. GROUNDS IN SUPPORT OF THIS PETITION

4.1. WITH ALL DUE RESPECT, PUBLIC RESPONDENT

ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN RULING THAT
THERE WAS JUSTIFIABLE CAUSE TO RESORT TO
SUBSTITUTED SERVICE OF SUMMONS.

4.2. WITH ALL DUE RESPECT, PUBLIC RESPONDENT

ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING

Page 4 of 36
TO LACK OR EXCESS OF JURISDICTION IN RULING THAT
THERE WAS A VALID SUBSTITUTED SERVICE OF
SUMMONS WHEN A COPY OF THE SUMMONS WAS LEFT
WITH A MINOR HOUSEBOY.

V. ARGUMENTS AND DISCUSSION

I. Public Respondent acted with grave abuse of discretion

in ruling that there was justifiable cause to resort to
substituted service of summons.

No personal service of summons.

5.1. Jurisdiction in personam—the power of the court to subject

the parties in a particular action to its judgment and other
rulings—is an element of due process. In Prudential Bank v.
Magdamit Jr.., G.R. No. 183795, 12 November 2014 the court said
that Fundamental is the rule that jurisdiction over a defendant in
a civil case is acquired either through service of summons or
through voluntary appearance in court and submission to its
authority. In the absence or when the service of summons upon
the person of the defendant is defective, the court acquires no
jurisdiction over his person, and a judgment rendered against him
is null and void. Hence, the import of this pronouncement is that
jurisdiction over the defendant in actions in personam can only be
acquired either through a valid service of summons or voluntary
appearance.

5.2 Insofar as valid service of summons is concerned, the case of

Carson Realty and Management Corporation v. Red Rubin
Security Agency , G.R. No. 225035, 8 February 2017 ruled that in
actions in personam, [such as the present case], the court acquires
jurisdiction over the person of the defendant through personal or
substituted service of summons. Hence, only two modes of
summons are allowed for the court to acquire jurisdiction over the
person of the defendant in an action in personam which are,
personal service and substituted service of summons.

5.3. However, the court cannot just choose one method over the
other as was the pronouncement in the same case of Carson
Realty and Management Corporation v. Red Rubin Security

Page 5 of 36
Agency, G.R. No. 225035, 8 February 2017 that parties do not have
unbridled right to resort to substituted service of summons.
Further, the same case ruled that substituted service is in
derogation of the usual method of service and personal service of
summons is preferred over substituted service.

5.4. Section 6, Rule 14 of the 1997 Rules of Civil Procedure, as

Amended, states that personal service is preferred when
practicable. As a general rule, summons shall be served by
handling a copy thereof to the defendant in person. If he refuses to
receive and sign for it, the copy should be tendered to him.

5.5. There was no personal service of summons in this case.

According to the Proof of Service, the copy of the summons was not
given to Petitioner personally. Rather, it was left with the
houseboy Dalisay (see Annex “D”).

No valid resort to substituted service.

5.6. For justifiable reasons, other modes of serving summons may

be resorted to. Section 6, Rule 14 of the 1997 Rules of Civil
Procedure, as Amended, provides for substituted service of
summons. This is an exception to the general rule that personal
service is necessary.

5.7. In Administrative Circular No. 59, issued on 19 November

1989, the Supreme Court stressed that substituted service is a
method extraordinary in character. It can only be resorted to after
earnest efforts to effect prompt, personal service have failed.

5.8. The pertinent facts and circumstances attendant to the

service of summons are found in the Proof of Service. In the case
of Hamilton v. Levy, G.R. No. 39283, 15 November 2000, the
Supreme Court held that the impossibility of personal service
within a reasonable time should be clearly shown in the Proof of
Service. Otherwise, any substituted service cannot be upheld.

5.9. To prove impossibility of personal service, the Supreme Court

held in the case of Manotoc v. Court of Appeals, G.R. No. 130974,
16 August 2006, that there must be several attempts by the sheriff
to personally serve the summons, all of which resulted in failure.
Several attempts means at least three (3) tries, preferably on at
least two different dates.

Page 6 of 36
5.10. In the present case, the Proof of Service states that the
sheriff went to Petitioner’s house only once (see Annex “D”). This
single, failed attempt at personal service is not enough to warrant
resort to substituted service of summons.

5.11. In Collado-Lacorte v. Rabena, A.M. No. P-09-2665, 4 August

2009, the Supreme Court further explained the concept of
“reasonable time”. No period is specified under the law. However,
at the end of the month, it is a practice for the branch clerk of
court to require the sheriff to submit a return of the summons
assigned to the sheriff for service. The Sheriff’s Return provides
data which is used in the Monthly Report of Cases to be submitted
to the Office of the Court Administrator within the first ten (10)
days of the succeeding month. Thus, one (1) month from the
issuance of summons is generally held to be a reasonable time
with regard to personal service on the defendant.

5.12. In the case of Venturanza v. Court of Appeals, G.R. No. L-

77760, 11 December 11, 1987, it was held that the Proof of Service
must show that serious efforts or attempts were exerted to
personally serve the summons and that said efforts failed.
Otherwise, the presumption of regularity in the performance of
official duty cannot be availed of.

5.13. In the present case, the substituted service was resorted to

on XXX. This is within XXX. It cannot be said that a reasonable
time to personally serve the summons had elapsed. Due to a clear
lack of earnest efforts to personally serve summons within a
reasonable time, the substituted service is invalid.

II. Public Respondent acted with grave abuse of discretion

in ruling that there was a valid substituted service of
summons when a copy of the summons was left with a
thirteen-year-old houseboy.

A minor is not a person of suitable age.

5.14. Assuming arguendo that the sheriff could have validly

resorted to substituted service of summons, the service effected in
this case was invalid for being contrary to Section 7 (a), Rule 14 of
the 1997 Rules of Civil Procedure, as Amended. Under this
provision, a copy of the summons must be left with a person of
sufficient age and discretion then residing therein.

Page 7 of 36
5.15. In Macasaet v. Co., G.R. No. 156759, 5 June 2013, the court
said that, If, for justifiable reasons, the defendant cannot be
served in person within a reasonable time, the service of the
summons may then be effected either (a) by leaving a copy of the
summons at his residence with some person of suitable age and
discretion then residing therein, or (b) by leaving the copy at his
office or regular place of business with some competent person in
charge thereof. Hence, if the summons were to be served at the
residence of defendant, the summons must be given to a person of
suitable age and discretion and if such summons were to be served
at the office or principal place of business of defendant, the
summons must be given to a competent person in charge. This case
falls under the first instance.

5.16. In Manotoc v. Court of Appeals, G.R. No. 130974, 16 August

2006, a person of suitable age and discretion is one who has
attained the age of full legal capacity (18 years old) and is
considered to have enough discernment to understand the
importance of a summons. "

5.17. Therefore, the sheriff must determine if the person found in

the alleged dwelling or residence of defendant is of legal age, what
the recipients relationship with the defendant is, and whether
said person comprehends the significance of the receipt of the
summons and his duty to immediately deliver it to the defendant
or at least notify the defendant of said receipt of summons. These
matters must be clearly and specifically described in the Return of
Summons.

5.18. When substituted service of summons was effected on DATE,

Dalisay was only thirteen (13) years old (see Annex “E”). Thus,
he is not a person of suitable age within the contemplation of the
law. Furthermore, the Proof of Service (see Annex “D”) fails to
state the matters concerning Dalisay’s discernment. Even
assuming arguendo that he is a person of discretion, the
requirement is still not met as the law uses the conjunction “and”
which means that both the requirement of suitable age and
discretion must be possessed by such person. Hence, the
substituted service is still patently defective.

Page 8 of 36
 PRAYER

WHEREFORE, premises considered, Petitioner most

respectfully prays that this Honorable Court:

1) Give due course to this Petition;

2) Issue a Temporary Restraining order against respondent
Judge in further proceeding on with the case.
3) Render judgment nullifying the decision dated February 14,
2019; and,
4) Other reliefs as may be just and equitable under the
premises.

Respectfully submitted.

Cebu City, Philippines, 30 March 2019.

CHILL H. JOKENO
Counsel for Lebron James
Roll of Attorneys No. 321656
PTR No. 926156, January 7, 2019, Cebu City
IBP No. 101656, January 5, 2019, Cebu City
MCLE Compliance No. V-56256, October 3, 2018
5th Floor, Madrigal Business Tower
Tel No. 325-2656 / Fax no. 325-1356
chilljokeno@gmail.com

Page 9 of 36
VERIFICATION AND CERTIFICATION OF NON-FORUM
SHOPPING

I, LEBRON JAMES, a Filipino of legal age, single, and a resident

of House 5, St. Patrick Street, Silver Hills Subdivision, Nasipit
Road, Talamban, Cebu City, Cebu, after having been duly sworn
to in accordance with law, hereby depose and state, THAT:

1. I am the Petitioner in the above entitled Petition for Certiorari

under Rule 65 before the Court of Appeals;

2. I have caused the preparation of the foregoing Petition and have

read the contents thereof;

3. All the allegations contained therein are true and correct based
on my personal knowledge and/or based on authentic records
available to me;

4. I have not heretofore commenced any other action or

Proceedings involving the same issues before the Supreme Court,
the Court of Appeals, or the different Divisions thereof, the
Regional Trial Court, the Municipal or Metropolitan Trial Courts,
or any other tribunal or agency;

5. If I should hereafter learn that a similar action or proceeding

has been filed or is pending before the Supreme Court, the Court
of Appeals, or the different Divisions thereof, the Regional Trial
Courts, Municipal or Metropolitan Trial Courts, or any other
tribunal or agency, I hereby undertake to report the fact within
five (5) days therefrom.

IN WITNESS WHEREOF, I have hereunto set my signature this

26th of March, 2019.

LEBRON JAMES

Affiant

CHILL H. JOKENO
Counsel for Lebron James
Roll of Attorneys No. 321656
PTR No. 926156, January 7, 2019, Cebu City
IBP No. 101656, January 5, 2019, Cebu City
MCLE Compliance No. V-56256, October 3, 2018
5th Floor, Madrigal Business Tower
Tel No. 325-2656 / Fax no. 325-1356
chilljokeno@gmail.com

Page 10 of 36
 Republic of the Philippines
REGIONAL TRIAL COURT
Branch 15, Cebu City

STEPHEN CURRY,
Plaintiff,
Civil Case No: 12345
-versus- For: Collection of Sum of Money

LEBRON JAMES,
Defendant.
X-------------------/

DECISION

This deals with the complaint for collection of sum of money filed by
Plaintiff Stephen Curry on January 23, 2019 against defendant Lebron
James. Briefy, in the complaint, Plaintiff alleges that on January 13, 2018,
Plaintiff Stephen Curry and Lebron James entered into a contract of loan for
a lump sum payment of Two Million Five Hundred Thousand Pesos (P 2,
500, 000.00) with a non-compounding interest rate of 5% per annum
payable on January 12, 2019 evidenced by a Promissory note allegedly
signed by both contracting parties.

Despite oral and written demands sent by letter on January 16, 2019
and January 20, 2019, defendant Lebron James failed to pay the note
payable with its corresponding accumulated interest. Such failure to pay
compelled herein plaintiff to initiate this present action to collect the sum
owing to him.

On February 2, 2019, summons was served in the residence of herein

Defendant Lebron James. However, no Answer was filed by the defendant
within the period required by these Rules. Section 1, Rule 11 of the Rules of
Court provides that:

Section 1. Answer to the complaint. — The defendant shall file his

answer to the complaint within fifteen (15) days after service of
summons, unless a different period is fixed by the court. (la)

Moreover, Section 3, Rule 9 of the same Rules of Court provides that:

Section 3. Default; declaration of. — If the defending party fails to

answer within the time allowed therefor, the court shall, upon motion
of the claiming party with notice to the defending party, and proof of

Page 11 of 36
 such failure, declare the defending party in default. Thereupon, the
court shall proceed to render judgment granting the claimant such
relief as his pleading may warrant, unless the court in its discretion
requires the claimant to submit evidence. Such reception of evidence
may be delegated to the clerk of court. (1a, R18)

Hence, for the failure of the defendant Lebron James to file an

Answer within the period required by the aforementioned Rules, plaintiff
Stephen Curry was duly allowed to present evidence of such indebtedness.

WHEREFORE, defendant LeBron James is hereby ordered to pay

plaintiff Stephen Curry the amount of Two Million Five Hundred Thousand
Pesos (P 2, 500, 000.00) with its corresponding interests.

Notify the parties through their counsels of this order.

SO ORDERED.

Cebu City, Philippines. March 28, 2019.

DEMAR F. DEROZAN
Presiding Judge

Page 12 of 36
 REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT
7TH JUDICIAL
Branch 15, Cebu City

STEPHEN CURRY,
Plaintiff,
Civil Case No:12345
-versus- For: Collection of Sum of Money

LEBRON JAMES,
Defendant.
ORDER

This resolves the Motion to Declare Defendant in Default filed by

Plaintiff Stephen Curry on February 10, 2019.

Plaintiff claims that defendant failed to file his Answer within the 15-
day reglementary period set forth under Section 1 Rule 11 of the Rules of
Court. Plaintiff alleges that the defendant was served a copy of the
summons and of the Complaint, together with the annexes thereto on
January 23, 2019. However, defendant failed to file an Answer within the
period required.

Under Section 1 Rule 11 of the Rules of Court, the defendant is

required to file his Answer to the Complaint within fifteen (15) days after
the service of summons, unless a different period is fixed by the court. If
defendant fails to comply with the aforesaid requirement of filing the
Answer within the said period, Section 3 Rule 9 of the Rules of Court allows
the court to declare the defendant in default, to wit:

Sec. 3. Default; declaration of. – If the defending party fails to

answer within the time allowed therefor, the court shall, upon
motion of the claiming party with notice to the defending
party, and proof of such failure, declare the defending party in
default. Thereupon, the court shall proceed to render
judgment granting the claimant such relief as his pleading may
warrant, unless the court in its discretion requires the
claimant to submit evidence. Such reception of evidence may
be delegated to the clerk of court. xxx

In the case at bar, Plaintiff Stephen Curry served to defendant Lebron

James a copy of the summons and of the Complaint, together with the
annexes on January 23, 2019. However, Defendant did not file an Answer
within the fifteen (15) day reglementary period set forth under Section 1
Page 13 of 36
Rule 11 of the Rules of Court. As such, this court may declare defendant in
default pursuant to Section 3 Rule 9 of the Rules of Court.

WHEREFORE, the Motion to Declare defendantLebron James in

default is hereby GRANTED.

SO ORDERED.

Cebu City, Philippines, February 13, 2019

Page 14 of 36
 Republic of the Philippines
REGIONAL TRIAL COURT
Seveth Judicial Region
Branch 15, Cebu City
Stephen Curry,
Plaintiff,
- versus - Civil Case No. 234162
For: Sum of Money
Lebron James,
Defendant.
x-------------------------------------x

ORDER

This resolves the Motion for Reconsideration filed by defendant

Lebron James on February 25, 2019. Defendant-Movant assails the order
dated on February 13, 2019 granting plaintiff’s motion to declare defendant
in default thereby declaring defendant in default for failure to file an
answer within the reglementary period as provided by the rules.

James claims that he was denied due process and that it was
improper for this court to declare him in default. Rule 9(3) of the Rules of
Court allows the Court to declare a party in default for failure to answer
within the time allowed therefore upon motion of the claiming party with
notice of the defending party.

In the case at bar and as reflected in the records, defendant upon

receiving summons on February 2, 2019 is obliged by the rules to file his
answer within 15 days from such date or until February 17, 2019. However,
this defendant failed to do so. As such, it is within the Jurisdiction of this
Court to declare defendant Lebron James in default.

All considered, defendant failed to present any newly discovered

evidence or established grave errors of fats or laws or serious irregularities
in the Decision that would justify a reversal or modification of the same.

WHEREFORE, the Motion for Reconsideration of Defendant Lebron

James is DENIED.

SO ORDERED.

Cebu City, Philippines, February 28, 2019

Page 15 of 36
 Republic of the Philippines
REGIONAL TRIAL COURT
Seventh Judicial Region
Branch 15, Cebu City
STEPHEN CURRY,
Plaintiff,
- versus - Civil Case No. 234162
For: Sum of Money
LEBRON JAMES,
Defendant.
x--------------------------------x

SHERIFF’S RETURN OF SUMMONS

THIS IS TO CERTIFY that on February 2, 2019, the undersigned caused

the service of summons together with a copy of the complaint with its
annexes to defendant Lebron James at his given address House 5, St.
Patrick Street, Silver Hills Subdivision, Nasipit Road, Talamban, Cebu City,
Cebu, as stated in the Complaint. Unfortunately, only his houseboy, a young
man named Cardo Dalisay was present. He told me that Mr. James was on a
vacation in Palawan. On the same date, I explained to Dalisay the
contents of the summons I brought with me and he readily signed the
acknowledgment receipt and received the summons together with the copy
of the complaint and its annexes.

WHEREFORE, in view of the foregoing premises, herein undersigned

effected the Substitute Service of the summons to the defendant’s
houseboy named Dalisay.

Cebu City, Cebu, Philippines, February 3, 2019.

BRIAN SCALABRINE

Sheriff

Page 16 of 36
 REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT
7TH JUDICIAL
Branch 15, Cebu City

STEPHEN CURRY,
Plaintiff,
Civil Case No:12345
-versus- For: Collection of Sum of Money

LEBRON JAMES,
Defendant.
x-------------------------------------------------/

MOTION TO DECLARE DEFENDANT IN DEFAULT

Plaintiff, through counsel, unto this Honorable Court respectfully

avers that:

1. The records of the Honorable Court show that Defendant was served
a copy of the summons and of the complaint, together with the
annexes thereto on February 2, 2019;
2. Upon verification however, the records show that Defendant Lebron
James has failed to file his answer within the 15-dayreglementary
period specified of by the Rules of Court despite service of summon
and complaint;

PRAYER
WHEREFORE, it is respectfully prayed that Defendant Lebron James
be declared in default pursuant to the Rules of Court and that the
Honorable Court proceed to render judgement as the complaint may
warrant.

Given this 10th day of February 2019 at Cebu City, Philippines.

ACE NORMAN P. ALVERO

Counsel for Plaintiff
Roll of Attorneys No. 321693
PTR No. 926154, January 7, 2019, Cebu City
IBP No. 101611, January 5, 2019, Cebu City
Page 17 of 36
 MCLE Compliance No. V-56231, October 3, 2018
Room 214, 7th flr. Big Bldg., Queen’s Rd., Cebu City
Tel No. 325-2622 / Fax no. 325-1372
alveroandassociates@gmail.com

Page 18 of 36
NOTICE OF HEARING
HON. CLERK OF COURT
Regional Trial Court
Branch 15, Cebu City

Greetings!

Kindly bring the foregoing motion to the attention of the Honorable Court
immediately upon receipt thereof and set the same for hearing on 15th day
of February 2019, Friday, at 8:30 A.M.

ACE NORMAN P. ALVERO

Counsel for Plaintiff
Roll of Attorneys No. 321693
PTR No. 926154, January 7, 2019, Cebu City
IBP No. 101611, January 5, 2019, Cebu City
MCLE Compliance No. V-56231, October 3, 2018
Room 214, 7th flr. Big Bldg., Queen’s Rd., Cebu City
Tel No. 325-2622 / Fax no. 325-1372
alveroandassociates@gmail.com

Please be notified that the foregoing motion will be set for hearing this 15th
day of February 2019, Friday, at 8:30 A.M.

COPY FURNISHED:

RECEIVED BY:

CHILL H. JOKENO
Counsel for the Respondent
Cebu City, Philippines

Page 19 of 36
 REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT
7TH JUDICIAL
Branch 15, Cebu City

STEPHEN CURRY,
Plaintiff,
Civil Case No: 12345
-versus- For: Collection of Sum of Money

LEBRON JAMES,
Defendant.
MOTION FOR RECONSIDERATION

Defendant by counsel respectfully state:

1. The subject matter of this motion for reconsideration is the decision

of the honorable court February 14, 2019 which declared defendant
in default for failure to file an answer within the allowed period
under the rules;
MATERIAL DATES

2. The undersigned counsel for the defendants personally received a

copy of the said Decision on February 14, 2019. His 15th day to file
this motion expires on March 1, 2019.
BASIS OF COURT IN DECLARING DEFENDANT IN DEFAULT

3. On February 13, 2019, the honorable court declared defendant in

default and the order was based on the following grounds:
a. There was proper service of summons;
b. Defendant failed to file his answer within the period allowed
by law.

ISSUES

4. The main issue defendant wants to raise in this motion for

reconsideration pertains to the manner in which the service of
summons was done. It will be recalled that the service of summons
was done through substituted service at the residence of defendant
but to a houseboy therein who was then only 13 years old.

ARGUEMENTS

Page 20 of 36
 This motion for reconsideration respectfully submits that the
honorable court erred in its order declaring defendant in default for
reasons stated below:

I. THE INSTANT CASE IS AN ACTION IN PERSONAM

5. In ascertaining the proper mode of service of summons in an action,

there has to be a determination as to kind of action that is involved
whether the action is in personam or is in rem or quasi in rem;

6. In the case of Paderanga v. Buissan, G.R. No. L-49475, September 28,

1993 the court had the occasion to define an action in personam and
an action in rem or quasi in rem. The court said that, [a]n action in
personam is an action against a person on the basis of his personal
liability, while an action in rem is an action against the thing itself,
instead of against the person.

7. The instant is classified as an action in personam as it seeks a claim

based not against a specific thing, but rather against the person of
defendant on the basis of personal liability;

II. THERE WAS NO PROPER SERVICE OF SUMMONS

8. The case of Biaco v. Philippine Countryside Rural Bank, G.R. No.

161417, February 8, 2007, the court differentiated an action in
personam from an action in rem or quasi in rem in terms of
acquisition of jurisdiction ruling that, [i]n an action in
personam, jurisdiction over the person of the defendant is necessary
for the court to validly try and decide the case. In a proceeding in
rem or quasi in rem, jurisdiction over the person of the defendant is
not a prerequisite to confer jurisdiction on the court provided that
the court acquires jurisdiction over the res. Jurisdiction over the res is
acquired either (1) by the seizure of the property under legal process,
whereby it is brought into actual custody of the law; or (2) as a result
of the institution of legal proceedings, in which the power of the
court is recognized and made effective;

9. Jurisdiction in personam—the power of the court to subject the

parties in a particular action to its judgment and other rulings—is an
element of due process. In Prudential Bank v. Magdamit Jr.., G.R. No.
183795, 12 November 2014 the court said that Fundamental is the
rule that jurisdiction over a defendant in a civil case is acquired either
through service of summons or through voluntary appearance in
court and submission to its authority. In the absence or when the
service of summons upon the person of the defendant is defective,
Page 21 of 36
 the court acquires no jurisdiction over his person, and a judgment
rendered against him is null and void. Hence, the import of this
pronouncement is that jurisdiction over the defendant in actions in
personam can only be acquired either through a valid service of
summons or voluntary appearance;

10.Insofar as valid service of summons is concerned, the case of Carson

Realty and Management Corporation v. Red Rubin Security Agency ,
G.R. No. 225035, 8 February 2017 ruled that in actions in
personam, [such as the present case], the court acquires jurisdiction
over the person of the defendant through personal or substituted
service of summons. Hence, only two modes of summons are
allowed for the court to acquire jurisdiction over the person of the
defendant in an action in personam which are, personal service and
substituted service of summons;

11.Carson Realty and Management Corporation v. Red Rubin Security

Agency, G.R. No. 225035, 8 February 2017 that parties do not have
unbridled right to resort to substituted service of summons. Further,
the same case ruled that substituted service is in derogation of the
usual method of service and personal service of summons is
preferred over substituted service;

12.There was no personal service of summons in this case. According to

the Proof of Service, the copy of the summons was not given to
Petitioner personally;

13.Hence, the only other mode of service is through substituted service

of summons which was also not done within the contemplation of
the law;

14.In Administrative Circular No. 59, issued on 19 November 1989, the

Supreme Court stressed that substituted service is a method
extraordinary in character. It can only be resorted to after earnest
efforts to effect prompt, personal service have failed;

15.In the case of Hamilton v. Levy, G.R. No. 39283, 15 November 2000,
the Supreme Court held that the impossibility of personal service
within a reasonable time should be clearly shown in the Proof of
Service. Otherwise, any substituted service cannot be upheld;

16.In the instant case, the proof of service contained no facts and
circumstances indicative of such impossibility of personal service;

Page 22 of 36
 17.Assuming arguendo that the sheriff could have validly resorted to
substituted service of summons, the law requires that a copy of the
summons must be left with a person of sufficient age and discretion
then residing therein;

18.In the case of Macasaet v. Co., G.R. No. 156759, 5 June 2013, the
court said that, If, for justifiable reasons, the defendant cannot be
served in person within a reasonable time, the service of the
summons may then be effected either (a) by leaving a copy of the
summons at his residence with some person of suitable age and
discretion then residing therein, or (b) by leaving the copy at his
office or regular place of business with some competent person in
charge thereof. Hence, if the summons were to be served at the
residence of defendant, the summons must be given to a person of
suitable age and discretion and if such summons were to be served at
the office or principal place of business of defendant, the summons
must be given to a competent person in charge. This case falls under
the first instance.

19.In the case of Prudential Bank v. Magdamit Jr.., G.R. No. 183795, 12
November 2014, the court said that a person of suitable age and
discretion is one who has attained the age of full legal capacity (18
years old) and is considered to have enough discernment to
understand the importance of a summons. "Discretion" is defined as
"the ability to make decisions which represent a responsible choice
and for which an understanding of what is lawful, right or wise may
be presupposed". Thus, to be of sufficient discretion, such person
must know how to read and understand English to comprehend the
import of the summons, and fully realize the need to deliver the
summons and complaint to the defendant at the earliest possible
time for the person to take appropriate action. The houseboy
certainly does not qualify as a person of suitable age as shown by his
certificate of Live birth where is below 18 years of age. He is also not
a person of discretion. But even if he is a person of discretion, the
requirement is still not met as the law uses the conjunction “and”
which means that both the requirement of suitable age and
discretion must be possessed by such person. Hence, the substituted
service is still patently defective.
WHEREFORE, premises considered it is respectfully prayed that the
order February 14, 2019 be reconsidered:

a. By setting aside such order declaring defendant in default;

b. Allowing defendant to file his answer after a proper service of
summons is done.
Cebu City, February 25, 2019

Page 23 of 36
 ACE NORMAN P. ALVERO
Counsel for Plaintiff
Roll of Attorneys No. 321693
PTR No. 926154, January 7, 2019, Cebu City
IBP No. 101611, January 5, 2019, Cebu City
MCLE Compliance No. V-56231, October 3, 2018
Room 214, 7th flr. Big Bldg., Queen’s Rd., Cebu City
Tel No. 325-2622 / Fax no. 325-1372
alveroandassociates@gmail.com

NOTICE OF HEARING
HON. CLERK OF COURT
Regional Trial Court
Branch 15, Cebu City

Greetings!

Kindly bring the foregoing motion to the attention of the Honorable Court
immediately upon receipt thereof and set the same for hearing on February
26, 2019.

ACE NORMAN P. ALVERO

Counsel for Plaintiff
Roll of Attorneys No. 321693
PTR No. 926154, January 7, 2019, Cebu City
IBP No. 101611, January 5, 2019, Cebu City
MCLE Compliance No. V-56231, October 3, 2018

Page 24 of 36
 Room 214, 7th flr. Big Bldg., Queen’s Rd., Cebu City
Tel No. 325-2622 / Fax no. 325-1372
alveroandassociates@gmail.com

Please be notified that the foregoing motion will be set for hearing this
DATE.

COPY FURNISHED:

RECEIVED BY:

CHILL H. JOKENO
Counsel for the Respondent
Cebu City, Philippines

Page 25 of 36
 Republic of the Philippines
REGIONAL TRIAL COURT
Seveth Judicial Region
Branch 15, Cebu City

Stephen Curry,
Plaintiff.
Civil Case No. 234162
For: Sum of Money
- versus -

Lebron James,
Defendant.
x-------------------------------------x

COMPLAINT

COMES NOW, plaintiff, together with the undersigned counsel, to this most
honorable court, MOST RESPECTFULLY STATES THAT:

1. Plaintiff is a Filipino, of legal age, single, and a resident of House

20, Happiness Street, Maria Luisa Subdivision, Banilad, Cebu City.;
Defendant is also a Filipino, of legal age, single, and currently residing
at House 5, St. Patrick Street, Silver Hills Subdivision, Nasipit Road,
Talamban, Cebu City, Cebu, where he may be served with summons
and other court processes.

2. On January 1, 2018, Defendant borrowed from Plaintiff a sum of

money amounting to Two Million Five Hundred Thousand Pesos
(P2,500,000.00), where both agreed that it be payable within one (1)
year on January 12, 2019 with five per centum (5%) interest. The loan
was evidenced by a promissory note dated January 13, 2018,
attached herewith as “Annexed A” and made an integral part of this
complaint.

3. Plaintiff presented the note to Defendant on January 14, 2019 and

made a demand, but NO payment was made.

4. A demand letter was sent to Defendant on January 16, 2019 for

the payment of the loan, but no reply nor payment was received by
the Plaintiff. This demand letter is attached herewith as “Annex B”
and made an integral part of this complaint.
Page 26 of 36
 5. Another demand letter was sent to Defendant on January 20, 2019
for the payment of the loan, but still neither reply nor payment was
received by the Plaintiff. This demand letter is attached herewith as
“Annex C” and made an integral part of this complaint.

6. Despite repeated demands, both oral and written, Defendant

failed and refused, and continues to fail and refuse to pay the loan to
Plaintiff.

7. Resort to the Barangay Conciliation process proved futile as

Defendant consistently refused to settle. Thus, a Certification to File
Action has been issued by the Barangay Junquera through its
Barangay Chairman, a copy of which is attached herewith as “Annex
D” and made an integral part of this complaint.

8. Defendant’s obligation is due and demandable and Plaintiff is

entitled to the payment of the entire amount of Two Million Five
Hundred Thousand Pesos (P2,500,000.00) plus five per centum (5%)
interest as agreed upon.

9. By reason of Defendant’s unreasonable failure and refusal to pay

his due and demandable obligation, Plaintiff was constrained to
engage the services of counsel to vindicate his rights thereby
committing himself to pay legal expenses amounting to Two Hundred
Thousand Pesos (P200,000.00).

WHEREFORE, Plaintiff respectfully prays for judgment in his favor through a

Decision ordering Defendant to pay him Two Million Five Hundred
Thousand Pesos (P2,500,000.00) plus five per centum (5%) interest and
Two Hundred Thousand Pesos (P200,000.00) as Attorney’s Fees.

Other just and equitable reliefs are likewise prayed for.

Cebu City, Cebu, 23 January 2019.

ACE NORMAN P. ALVERO

Counsel for Plaintiff
Roll of Attorneys No. 321693
PTR No. 926154, January 7, 2019, Cebu City
IBP No. 101611, January 5, 2019, Cebu City
MCLE Compliance No. V-56231, October 3, 2018
Room 214, 7th flr. Big Bldg., Queen’s Rd., Cebu City
Page 27 of 36
Tel No. 325-2622 / Fax no. 325-1372
alveroandassociates@gmail.com

Page 28 of 36
 VERIFICATION AND CERTIFICATION OF

NON-FORUM SHOPPING

Republic of the Philippines )

City of Cebu . . . . . . . . . . . . . )S.S.

I, Stephen Curry, Filipino, of legal age, single, and a resident of Blk. 4, Lot B.,
Pelaez, Cebu City, after having bee duly sworn to in accordance with law,
do hereby depose and state that:

1. I am the Plaintiff in the above-entitled case;

2. I have caused the preparation of the foregoing complaint and have

read the allegations contained therein;

3. The allegations in the said complain are true and correct of my own
knowledge and belief, and based on authentic records;

4. I hereby certify that I have not commenced any other action or

proceeding involving the same issues in any court, tribunal or quasi-
judicial agency and, to the best of my knowledge, no such other
action or claim is pending therein;

5. If I should learn thereafter that a similar action or proceeding has

been filed or is pending, I hereby undertake to report that fact within
five (5) days therefrom to the court or agency where the original
pleading and sworn certification contemplated herein have been
filed; and

6. I executed this verification/certification to attest to the truth of the

foregoing facts and to comply with the provisions of Admin. Circular
No. 04-94 of the Honorable Supreme Court.

IN WITNESS WHEREOF, I have hereunto affixed my signature this 23rd day

of January 2019, in the City of Cebu, Philippines.

STEPHEN CURRY

Affiant

Page 29 of 36
SUBSCRIBED AND SWORN to before me this 23rd day of January 2019 in the
City of Cebu, affiant exhibiting to me his Driver’s License with numbers
ZX5627165 issued at Cebu City on January 5, 2019 valid until January 4,
2024, as his competent evidence of identity, and I have personally
examined herein affiant, and I am convinced that he is the same person
who executed this affidavit, and that I am satisfied that he have fully read
and understand the contents herein.

ARNOLD ARAN T. ABRIL

Notary Public for Cebu City
Notarial Commission No. 42679, until December 2020
Roll of Attorneys no. 710890
PTR No. 926155, January 1, 2019, Cebu City
IBP No. 109108, January 8, 2018, Cebu City
MCLE Compliance No. V-81657, June 6, 2018
7th Flr., Ebloc 2 Bldg., IT Park, Cebu City
Tel No. 325-2622 / Fax No. 325-7266
abrilandassociates@gmail.com

Doc. No: 03
Page No: 04
Book No: 21
Series of 2019

Copy furnished through personal service:

Counsel for Defendant
5th flr., Madrigal Business Tower,
Cebu City

Proof of Service

I, Kobe Saya, messenger for Ace Norman P. Alvero, herein counsel for
Plaintiff Stephen Curry, hereby certify that I personally delivered Plaintiffs
Page 30 of 36
Complaint dated January 23, 2019 House 5, St. Patrick Street, Silver Hills
Subdivision, Nasipit Road, Talamban, Cebu City, Cebu. The complaint was
received by a certain Cardo Dalisay, Mr. James’ houseboy, since the latter
was not present thereat.

IN WITNESS WHEREOF, I have hereunto affixed my signature this 23rd day

of January 2019, in the City of Cebu, Philippines.

KOBE SAYA

Affiant

SUBSCRIBED AND SWORN to before me this 23rd day of January 2019 in the
City of Cebu, affiant exhibiting to me his Driver’s License with numbers
QX6637164 issued at Cebu City on January 10, 2019 valid until January 9,
2024, as his competent evidence of identity, and I have personally
examined herein affiant, and I am convinced that he is the same person
who executed this affidavit, and that I am satisfied that he have fully read
and understand the contents herein.

ARNOLD ARAN T. ABRIL

Notary Public for Cebu City
Notarial Commission No. 42679, until December 2020
Roll of Attorneys no. 710890
PTR No. 926155, January 1, 2019, Cebu City
IBP No. 109108, January 8, 2018, Cebu City
MCLE Compliance No. V-81657, June 6, 2018
7th Flr., Ebloc 2 Bldg., IT Park, Cebu City
Tel No. 325-2622 / Fax No. 325-7266
abrilandassociates@gmail.com

Doc. No: 04
Page No: 04
Book No: 21
Series of 2019

Page 31 of 36
 PROMISSORY NOTE

Amount: P2,500,000.00 Date: January 13,

2018

Place: Cebu City Due Date: January 12,

2019

I, LEBRON JAMES, make a commitment and promise to pay to

STEPHEN CURRY, the sum of Two Million Five Hundred Thousand Pesos
(P2,500,000.00). Repayment is to be made on or before January 12, 2019 at
the interest rate of 5% per annum.

Lebron James

Stephen Curry

Page 32 of 36
 DEMAND LETTER

January 16, 2019

Dear LEBRON JAMES:

Good day! This letter shall serve as a formal written demand for
immediate payment in full of the principal amount of indebtedness of Two
Million Five Hundred Thousand Pesos (P2,500,000.00) with an interest rate
of 5% per annum as agreed upon in the promissory note executed by you in
favor of STEPHEN CURRY on January 13, 2018, which has been due since
January 12, 2019.

Although we wish to resolve this matter amicably, we are prepared

to take legal action in the event that it shall be necessary. If you have
already sent in your payment, please disregard this demand letter.

Thank you for your prompt attention to this matter.

Yours Truly,

Stephen Curry

ACE NORMAN P. ALVERO

Counsel for Stephen Curry
Roll of Attorneys No. 321693
PTR No. 926154, January 7, 2019, Cebu City
IBP No. 101611, January 5, 2019, Cebu City
MCLE Compliance No. V-56231, October 3, 2018
Room 214, 7th flr. Big Bldg., Queen’s Rd., Cebu City
Tel No. 325-2622 / Fax no. 325-1372
alveroandassociates@gmail.com

Page 33 of 36
 FINAL DEMAND LETTER

January 20, 2019

Dear LEBRON JAMES:

Good day. This letter shall serve as the last and final written demand
for immediate payment in full of the principal amount of indebtedness of
Two Million Five Hundred Thousand Pesos (P2,500,000.00) with an interest
of 5% per annum as agreed upon in the promissory note executed by you in
favor of STEPHEN CURRY on January 13, 2018, which has been due since
January 12, 2019.

Despite the demand letter sent on January 16, 2019, there has been
no payment received. We shall give you a period of three (3) days to satisfy
your outstanding debt. Failure to heed such demand within the period
given will result to our relentless legal action against you for payment of
your total indebtedness including the stipulated interest.

We wish for your immediate and full compliance.

Yours Truly,

Stephen Curry

ACE NORMAN P. ALVERO

Counsel for Stephen Curry
Roll of Attorneys No. 321693
PTR No. 926154, January 7, 2019, Cebu City
IBP No. 101611, January 5, 2019, Cebu City
MCLE Compliance No. V-56231, October 3, 2018
Room 214, 7th flr. Big Bldg., Queen’s Rd., Cebu City
Tel No. 325-2622 / Fax no. 325-1372
alveroandassociates@gmail.com

Page 34 of 36
Copy furnished through personal service:

ACE NORMAN P. ALVERO

Counsel for Plaintiff
Room 214, 7th flr. Big Bldg., Queen’s Rd., Cebu City
Tel No. 325-2622 / Fax no. 325-1372

AFFIDAVIT OF SERVICE
I, KARL MALONE, messenger for Atty Chill Jokeno, herein counsel
for Defendant Lebron James, hereby certify that I personally delivered
Defendant’s Petition for Certiorari dated March 27, 2019 to Plaintiff’s
counsel Atty Ace Norman Alvero with address at Room 214, 7th flr. Big
Bldg., Queen’s Rd., Cebu City. Counsel himself received the petition.

KARL MALONE
Affiant

SUBSCRIBED AND SWORN to before me this 27th day of March in

Cebu City, Philippines. Affiant exhibited to me his competent evidence of
identity SSS ID no. 166773 issued at on May 26, 2018 at Cebu City and I
have personally examined herein affiant and I am convinced that he is
the same person who executed this Affidavit of Service and that I am
satisfied that he have fully read and understood the contents hereof.

Witness my hand and seal.

Doc. No. ____; ATTY JOHN STOCKTON

Page No. ____; NOTARY PUBLIC, CEBU CITY
NOTARIAL COMMISSION 281176
Book No.____; Until Dec 31, 2019
Series of 2019. Unit 3b, 2nd floor of ABC Building
F. Ramos St., Cebu City
Roll of Attorneys No 12234
PTR No. 112444
IBP LRN 117366
MCLE Compliance V-2344: Aug 2018 Cebu City

Page 35 of 36
Copy furnished through personal service:

STEPHEN CURRY
Plaintiff

AFFIDAVIT OF SERVICE
I, KARL MALONE, messenger for Atty Chill Jokeno, herein counsel
for Defendant Lebron James, hereby certify that I personally delivered
Defendant’s Petition for Certiorari dated March 27, 2019 to Plaintiff
Stephen Curry himself with address at Blk. 4, Lot B., Pelaez, Cebu City.
Plaintiff himself received the petition.

KARL MALONE
Affiant

SUBSCRIBED AND SWORN to before me this 27th day of March in

Cebu City, Philippines. Affiant exhibited to me his competent evidence of
identity SSS ID no. 166773 issued at on May 26, 2018 at Cebu City and I
have personally examined herein affiant and I am convinced that he is
the same person who executed this Affidavit of Service and that I am
satisfied that he have fully read and understood the contents hereof.

Witness my hand and seal.

Doc. No. ____; ATTY JOHN STOCKTON

Page No. ____; NOTARY PUBLIC, CEBU CITY
NOTARIAL COMMISSION 281176
Book No.____; Until Dec 31, 2019
Series of 2019. Unit 3b, 2nd floor of ABC Building
F. Ramos St., Cebu City
Roll of Attorneys No 12234
PTR No. 112444
IBP LRN 117366
MCLE Compliance V-2344: Aug 2018 Cebu City

Page 36 of 36