Friday, November 22, 2013

Bounced checks constitute crime of estafa

Dear PAO,
I received a demand letter from my creditor to pay the amount corresponding to the postdated checks I issued, which were dishonored because of “insufficient funds”. Before receipt of the demand letter, I was willing to settle my obligations but my creditor and I had a misunderstanding regarding the manner of payment of my debt. In the end, she said that she would just see me in court as she did not agree to any settlement anymore.

I admit to be a bit angry because of her inconsideration. Then, I received a demand letter asking me to pay all my debts otherwise she will file a case for estafa and threatens me of imprisonment for 20 years. I believe that the case will be dismissed because I know that no person can be imprisoned for non-payment of debt. Please clarify!

Dear Josie,
Our Constitution has declared under Section 20, Article III thereof that “no person shall be imprisoned for debt or non-payment of poll tax”. Although a person who is indebted cannot be punished by imprisonment, he may nevertheless be sued civilly for collection of sum of money, wherein the court shall order payment of debt. However, when the act of borrowing of money is accompanied with an act which is punishable by law with imprisonment or penalty, the debtor may be criminally liable not for the non-payment of debt but for the commission of the crime.  As in your case, borrowing, alone, of money will not make you criminally liable. But your issuance of postdated checks which were later dishonored for “insufficiency of funds” constitutes a crime of either violation of Batas Pambansa Blg. 22 (B.P. 22) or Estafa.

BP 22, commonly referred to as “Bouncing Checks Law”, punishes any person who makes or draws and issues any checks to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check upon its presentment. On the other hand, the maker or issuer may likewise be liable for estafa punishable under Article 315 of the Revised Penal Code if he issues a check for payment of an obligation using false pretense or fraudulent act.

Thus, your creditor may pursue either a criminal case for violation of B.P. 22 and/or estafa against you depending on the events surrounding your issuance of postdated checks. The penalty of twenty (20) years for the issuance of unfunded check is not a threat for you to pay in full the amount of the checks. The said imprisonment is the maximum penalty which can be imposed upon an accused in an estafa case under Article 315 of the Revised Penal Code, which states that “the penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years.”

Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are stated.

source:  Manila Times Column of Atty Persida Acosta

Wednesday, November 20, 2013

Last will and testament provisions must be enforced

Dear PAO,
My mother passed away some 13 years ago. When she was still a baby, she was already under the care of my grandparents. They are not her biological parents, no legal adoption transpired. She is actually the daughter of my grandmother’s sister but they took care of her because they had no child of their own. She has been using my grandparents’ names in all her records.

Can she be considered as a legally adopted child? The reason why I am asking is because the conjugal property of my grandparents are now being claimed by their relatives, and according to them my mother is not entitled to any share of the legitime as she is not a legally adopted child of my grandparents. But my grandfather left a will prior to his demise bequeathing all their properties to my mother. Can my mother be considered as a rightful heir? Your guidance will be highly appreciated.

Dear ME,
In the situation that you have presented, we submit that your mother cannot be considered as a legally adopted child. First and foremost, we want to emphasize that there is no such thing as adoption by prescription. Accordingly, even if your mother was under the care of your alleged grandparents, that she has long presented herself as their daughter, and that all her records appear under their names, such will not suffice to declare her as a legally adopted child.

It is necessary that your mother and your alleged grandparents have undergone the process of adoption and that a competent court has declared her to have been legally adopted by her qualified adoptive parents. Absent these, their relationship remains to only be that of aunt-and-niece and uncle-in-law-and-niece.
Insofar as your mother’s right over the properties of her aunt and uncle-in-law is concerned, the claim of the latter’s relatives that your mother is not entitled to a legitime is correct. Legitime, as defined under the law, “is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs” (Article 886, New Civil Code of the Philippines). Pursuant to Article 887 of the said Code, only the following are compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children referred to in Article 287. Since your mother is only the niece of the decedents, she is not considered as one of their compulsory heirs, and thus, not entitled to any legitime.

However, as a devisee or legatee, your mother is entitled to receive the properties left by her uncle. It bears stressing that her uncle executed a last will and testament bequeathing in her favor those properties. Accordingly, the provisions thereof must be enforced. It is only essential that her uncle had no compulsory heir living at the time of his demise and that your mother did not predeceased him. Should there be a compulsory heir living at the time of his demise, only the properties which form part of the free portion of his estate may be transmitted to your mother, in accordance with the provisions of Section 5, Chapter 2, Title IV of the New Civil Code of the Philippines.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

source:  Manila Times Column of Atty Persida Acosta

Wednesday, November 13, 2013

Lessee may not legally suspend rent payment

Dear PAO,
My friend was named by his cousins as their attorney-in-fact in a Special Power of Attorney which they have executed relating to their properties here in the Philippines since they are domiciled abroad. My friend had the 2,000 square meter lot and the house leased at P2,500 a month, but there was no written contract. The problem is that the lessee has not paid the rentals since October 2012 and is even asking my friend to pay him the amount he spent for the improvements made in the properties. He warned my friend that a case will be filed against him if he will not settle the amount. What can my friend do to force the lessee to leave the properties which are the subject of the lease agreement?
Dear Pia,
Both parties in a contract of lease have respective obligations to fulfill. For one, the lessor is obliged, during the subsistence of the contract of lease, to make all the necessary repairs to the object of their contract in order to keep the same suitable for the use to which it has been devoted, unless there is a stipulation to the contrary (Article 1654 (2), New Civil Code [NCC]). In so far as the lessee is concerned, he or she is obliged, among others, to pay the price of the lease according to the terms stipulated in their contract (Article 1657 (1), NCC).
Should either the lessor or the lessee fail to comply with his or her obligation, the aggrieved party may ask for the rescission of the contract of lease and indemnification for damages, or allow the contract to remain in force but seek for indemnification for damages he has incurred (Article 1659, NCC). The lessee also has the option of suspending the payment of his rent if the lessor fails to make the necessary repairs or to maintain the lessee in peaceful and adequate enjoyment of the property leased and he may order the costs be attributable to the lessor if the latter has failed to make urgent repairs (Article 1658 and Article 1663 (4), NCC).
In the situation that you have presented before us, we cannot conclude with certainty whether your friend, as the representative of the owners of the property, is obliged to indemnify the lessee. While it may be true that certain works have been made by the lessee in the properties leased, it is not clear to us whether such were in the nature of necessary repairs. Accordingly, the lessee may not lawfully suspend the payment of his rent. Neither is there is any showing that such works were made as part of urgent repairs to the properties. Hence, the lessee may not order that the same be placed at the cost of the lessor or his representative.
Since the lessee has failed to comply with his obligation of paying the rent which has became due since October 2012, your friend may opt to file for judicial ejectment against the lessee. Pursuant to Section 9 of Republic Act No. 9653, otherwise known as the Rent Control Act of 2009, “Ejectment shall be allowed on the following grounds: x x x (b) Arrears in payment of rent for a total of three months: x x x”
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Saturday, November 9, 2013

Title to property immaterial in cases of forcible entry

Dear PAO,
My brother and his family used to live in a small residential lot which is subject of a land dispute. Although my brother admits that he has no legal title on the subject land, he has been living in that place for more than a decade now. No case was filed yet nor a court order was issued regarding this dispute but the other party already forced my brother and his family out of their residence through threats and physical force with the assistance of some armed men. Since then, they have been using my brother’s residence as a warehouse.
What case should my brother file to get back his house and to complain the persons who threatened and removed him from his residence? Can he legally complain even without having a land title on his occupied land? We hope for your legal advice on this matter. Thank you and more power!

Dear Bill,
Based from your narration of your brother’s situation, he may file an action for forcible entry against the people who removed him and his family from his residence.

An action for forcible entry is warranted when “…a person is deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, xxx” (Section 1, Rule 70, Revised Rules of Court). In your brother’s case, the use of force and threats justifies the filing of forcible entry. This action may be filed before the proper Metropolitan Trial Court or Municipal Trial Court, as the case may be, within one (1) year after the unlawful deprivation of the property for the purpose of recovering the possession of the property with damages and costs.

Furthermore, your brother’s lack of land title on the said disputed lot does not bar him from filing an action for forcible entry because the main issue in these kinds of action is the mere physical possession of the property and not the ownership of the said property. This is because in forcible entry cases, the actual condition of the title to the property is largely immaterial. What is important is that “…the party in peaceable and quiet possession shall not be turned out by strong hand, violence, or terror. A party out of possession must respect and resort to the law alone to obtain what he claims is his” (Edgardo L. Paras, Rules of Court Annotated, 1st edition, p. 162, citing Supia and Batioco vs. Quintero and Ayala, 59 Phil. 312).
Thus, in hearing a forcible entry complaint, the court will generally not rule on the ownership of the subject property considering that your brother has no land title on the subject land. The court’s adjudication, in these cases, is limited to the determination of who between the opposing parties has the better right to possess the same.

Once your brother has proven his allegations, the court where the action was filed may restore him as the rightful possessor of the subject property.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.

source:  Manila Times Column of Atty Persida Acosta