The ABS-CBN versus Willie Revillame case: What is a TRO?

(Note: Please read my Salt and Light blog post “Relationship tips for Shalani and other single men and women”.)

Due to the wide media coverage of this case and the popularity of the “Willing Willie” show, people have been hearing the term “TRO” over and over again. What exactly is a TRO?

Let’s deal first with the background facts. ABS-CBN filed last week of November with the Makati Regional Trial Court a 127 million peso case of infringement of copyright against Willie Revillame and TV5. According to a Starmometer report, “ABS-CBN claimed that Revillame and his co-defendants unlawfully infringed on ABS-CBN’s copyright over its show, Wowowee, citing section 172.2(l) of the Intellectual Property Code (IP Code). ABS-CBN stated that as the producer of Wowowee, it is the legal owner of a valid and subsisting copyright over each and every one of the Wowowee episodes and is thus entitled to protection against those who steal its work.”

The Starmometer report also stated: “Aside from seeking an award of damages in the amount of more than P127 Million, ABS-CBN also seeks for the issuance of a Temporary Restraining Order (TRO) and/or a Writ of Injunction to restrain Revillame, ABC and their other co-defendants from further producing and airing the infringing show Willing-Willie.”

Let me try to explain briefly these things in the vernacular:

Idinemanda ng ABS-CBN si Willie Revillame at TV5 sa Makati Regional Trial Court ng paglabag sa copyright law ng Filipinas. Humihingi ang ABS-CBN ng damyos na 127 million pesos. Upang mapigilan ang patuloy na paglabag sa karapatan nito, hinihiling ng ABS-CBN sa husgado na maglabas ng Temporary Restraining Order (TRO) o kaya ay writ of preliminary injunction laban kay Willie at TV5. Kung maglabas ng TRO o writ of preliminary injunction ang husgado, hindi na pwedeng ipalabas ng TV5 ang Willing Willie.

What is a preliminary injunction?

Rule 58 of the Rules of Court covers the provisional remedy of preliminary injunction. The term “provisional” means “while the case is going on”. Once the court hands down its decision in the case, the writ of “preliminary injunction“” may either become permanent or be done away with (if such writ or order was issued in the first place, that is).

Rule 58 Preliminary Injunction - an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction. A preliminary injunction may be granted by the court where the action or proceeding is pending. If the action or proceeding is pending in the Court of Appeals or in the Supreme Court, it may be issued by the said court or any member thereof.

A preliminary injunction may be granted when it is established:

(a) that the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually;

(b) that the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or

(c) that a party, court, agency or person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

What is a Temporary Restraining Order (TRO)?

When a party files a case and it asks for a preliminary injunction, it usually also asks the court to issue a “Temporary Restraining Order” because time is of the essence. If the party only asks for a writ of preliminary injunction, the hearing will usually be scheduled weeks or months from the filing of the case. The hearing can be scheduled, for example, as part of the pre-trial conference. But if the party also asks for the issuance of a TRO, the court must schedule a hearing within 24 hours from the filing of the case. Here are the rules:

1. The executive judge of a multiple sala court may issue a TRO ex-parte but it is good for seventy two (72) hours only. The term “ex-parte” means that the executive judge can grant the TRO immediately without any hearing.

2. Within twenty four (24) hours after receiving the records of the case and/or from the sheriff’s return, the trial judge must, after a summary hearing, either grant or deny the application for a TRO.

3. If granted, the TRO it is effective only for twenty (20) days and is automatically lifted after such period. During the effectivity of the TRO, the hearing for the issuance of a writ of preliminary injunction may be held.

4. If the TRO is not granted, the court will schedule hearings to determine whether a writ of preliminary injunction should be issued or not.

5. A TRO issued by the Court of Appeals or any of its members is good for sixty (60) days from service on the party sought to be restrained. On the other hand, a TRO granted by the Supreme Court or any of its member is effective until lifted by order.

In layman’s terms, a party wants a TRO or a writ of preliminary injunction so as to preserve his rights or to prevent damage. Without a TRO or a writ of preliminary injunction, the party, even if he eventually wins the case, may be left holding an empty bag, so to speak. (This may be illustrated by a dismissed employee winning a case with the NLRC against his employer. But if the company has become bankrupt while the case is going on, the employee may not be able to collect what the NLRC has awarded to him.)

Makati RTC refuses to grant the TRO; what happens next?

As you may know by now, the Makati RTC judge handling this case denied the ABS-CBN motion for the issuance of the TRO. What will happen next? The court will conduct hearings on:

(1) whether to grant a writ of preliminary injunction, and

(2) the main case of the alleged infringement of copyright.

Please take note that if a court does not grant a TRO, this does not necessarily mean it will not also grant a writ of preliminary injunction. Simply stated, a party may not get from the court a TRO but it may possibly get a writ of preliminary injunction. So, if the Makati RTC enjoins (stops) TV5 from airing Willing Willie, it will be through a writ of preliminary injunction and not by a TRO.

Motion to inhibit against Makati judge

The lawyers of TV5 and Willing Willie have also filed a “Motion To Inhibit” (also called “Motion To Recuse”) against the Makati RTC judge for his alleged ties to the lawyers of ABS-CBN. This motion has to be resolved first by the judge (or resolved together with the matter of the issuance of a writ of preliminary injunction.) If the judge refuses to inhibit himself, the lawyers of TV5 and Willing Willie will most likely bring this matter up to the Court of Appeals. They will ask the CA to order the judge to inhibit himself and to stay or suspend the hearings of the Makati RTC. (One other action that is often taken by lawyers is to file an administrative case against the judge with the Office of the Court Administrator of the Supreme Court.)

TV5 and Willing Willie’s defense: the format or mechanics of a television show cannot be copyrighted

According to news reports, lawyers for TV5, citing the 1999 decision of the Supreme Court in the case of Joaquin Jr. vs. Secretary of Justice Franklin Drilon, wanted the Makati court to dismiss the case filed by ABS-CBN. That 1999 decision involved a 1970's show “Rhoda and Me” which was allegedly copied by an RPN 9 program called “It’s a Date”. Secretary of Justice (now Senator) Drilon refused to file criminal charges for infringement of copyright against the RPN 9 program producer; the Supreme Court upheld Drilon’s action. TV5 is relying on the Supreme Court’s ruling that:

“The format or mechanics of a television show is not included in the list of protected works in Section 2 of P.D. No. 49. For this reason, the protection afforded by the law cannot be extended to cover them.”

ABS-CBN’s plan of action: facts of the Joaquin vs. Drilon case not on “all fours” with the present case

Lawyers of ABS-CBN were surely aware of the Supreme Court ruling in the Joaquin Jr. vs. Drilon case. So why did they still file this case? Well, in my opinion, ABS-CBN will argue that the ruling applies only to the format or mechanics of a show and not to specific portions or segments. Meaning, ABS-CBN will argue that specific portions or segments of Wowowee like the opening song and dance routine, for example, can be copyrighted. As the legal expression goes, ABS-CBN will argue that the facts of the Joaquin vs. Drilon case are not on “all fours” with its case against Willing Willie.

The Supreme Court’s ruling in the Drilon case also faulted the producer of the “Rhoda and Me” show for its failure to present the master tapes. ABS-CBN will most probably present tapes of the “Wowowee” and “Willing Willie” for the judge to view side by side.

This conflict of opinions on the interpretation of laws and Supreme Court decisions is what makes litigation or trial practice the cutting edge of the law. Besides, there are a lot of gray areas in copyright law. Please read these articles: (1) Salient provisions of the Intellectual Property Code of the Philippines; (2) Copyright laws: too restrictive or a fair reward for creators? and Playing it safe – Internet content and copyright by Virginia Morrison; and (3) What is copyright?

Forum shoppingIn simple terms, “forum shopping” takes place when a party files multiple cases in several courts, hoping that it will be able to get a favorable ruling in one court. Forum shopping is a ground for the dismissal of a case. This is why a certification on non-forum shopping is a mandatory part of any initiatory pleading (complaint or petition).

Some people are questioning why ABS-CBN filed this infringement of copyright case against Willie Revillame in Makati when there is already a case between them being heard in Quezon City. These people say that ABS-CBN is guilty of “forum shopping”. This is not true, in fairness to ABS-CBN.
In the Quezon City case, Revillame filed a petition for judicial confirmation of the rescission of his contract with ABS-CBN. He also asked for 11 million pesos in damages. ABS-CBN as counterclaim filed a 426 million peso counterclaim against Revillame for breach of his contract by signing up for a new show (“Willing Willie”) on TV5. ABS-CBN also asked the Quezon City court to issue a TRO to stop the airing of “Willing Willie”). When the court denied the motion for the TRO, ABS-CBN filed a petition for certiorari with an application for a TRO with the Court of Appeals. The CA denied the motion for a TRO.

Take note that the causes of actions in the cases filed by ABS-CBN are different; its counterclaim in Quezon city involves an alleged breach of contract while the Makati case involves an alleged infringement of copyright. Moreover, as far as I know, TV 5 did not raise the issue of “forum shopping” with the Makati court.

The question really is not of forum shopping but of venue. All the parties involved (ABS-CBN, TV5 and Willie Revillame) are based in Quezon City but ABS-CBN, for one reason or another, chose to file the copyright infringement case in Makati. “Improper venue” is a ground for dismissal of a case (without prejudice to its refiling in the proper venue). But as far as I know, the lawyers of TV5 and Revillame did not raise this issue.

An interesting Supreme Court ruling on the issue of “improper venue” is “Irene Marcos-Araneta, Daniel Rubio, Orlando G. Reslin, And Jose G. Reslin, Petitioners, vs. Court Of Appeals, Julita C. Benedicto, And Francisca Benedicto-Paulino, Respondents”. In this case, the Court ruled that the case must be filed in the proper court of the residence of the principal complainant, as Sec. 2 of Rule 4 provides. The Court ruled:

Irene was a resident during the period material of Forbes Park, Makati City. She was not a resident of Brgy. Lacub, Batac, Ilocos Norte, although jurisprudence[44] has it that one can have several residences, if such were the established fact. The Court will not speculate on the reason why petitioner Irene, for all the inconvenience and expenses she and her adversaries would have to endure by a Batac trial, preferred that her case be heard and decided by the RTC in Batac. On the heels of the dismissal of the original complaints on the ground of improper venue, three new personalities were added to the complaint doubtless to insure, but in vain as it turned out, that the case stays with the RTC in Batac.

Litigants ought to bank on the righteousness of their causes, the superiority of their cases, and the persuasiveness of arguments to secure a favorable verdict. It is high time that courts, judges, and those who come to court for redress keep this ideal in mind.

Legal Procedures 24: Motion to Dismiss

Note: Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

[1] A motion to dismiss is a prohibited pleading with cases falling under the Rule on Summary Procedure. In some instances, judges require the defendant to file an Answer instead of a motion to dismiss even if the case does not fall under Summary Procedure. In either case, the Answer can contain the grounds for a motion to dismiss as affirmative defenses.

[2] If the court grants the motion to dismiss, the complaint is dismissed. Subject to appeal, an order granting the motion to dismiss based on paragraphs g, h and i of Section 1, Rule 16 prevents the refiling of the same action or claim.

[3] If the court denies the motion to dismiss, the defendant can proceed to file an answer within the balance of the fifteen (15) day period to which he was entitled at the time of the serving of his motion but not less than five (5) days in any event, computed from his receipt of the notice of denial.

The defendant may also file a petition for certiorari or prohibition on the grounds of grave abuse of discretion, or the court’s lack or excess of jurisdiction.

Rule 16 Motion To Dismiss

SECTION 1. Grounds.—Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds:

(a) That the court has no jurisdiction over the person of the defending party;
(b) That the court has no jurisdiction over the subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity to sue;
(e) That there is another action pending between the same parties for the same cause;
(f) That the cause of action is barred by a prior judgment or by the statute of limitations;
(g) That the pleading asserting the claim states no cause of action;
(h) That the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and
(j) That a condition precedent for filing the claim has not been complied with. (1a)

SEC. 2. Hearing of motion.—At the hearing of the motion, the parties shall submit their arguments on the questions of law and their evidence on the questions of fact involved except those not available at that time. Should the case go to trial, the evidence presented during the hearing shall automatically be part of the evidence of the party presenting the same. (n)

SEC. 3. Resolution of motion.—After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading.

The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable.

In every case, the resolution shall state clearly and distinctly the reasons therefor. (3a)

SEC. 4. Time to plead.—If the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, computed from his receipt of the notice of the denial. If the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading, unless the court provides a longer period. (4a)

SEC. 5. Effect of dismissal.—Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same action or claim. (n)

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 be had thereon as if a motion to dismiss had been filed. (5a)

The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. (n)

Rule 17 Dismissal Of Actions

SECTION 1. Dismissal upon notice by plaintiff.—A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. (1a)

SEC. 2. Dismissal upon motion of plaintiff.—Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff’s instance save upon approval of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of the motion he manifests his preference to have his counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the approval of the court. (2a)

SEC. 3. Dismissal due to fault of plaintiff.—If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the court’s own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. (3a)

SEC. 4. Dismissal of counterclaim, cross-claim, or third-party complaint.—The provisions of this Rule shall apply. to the dismissal of any counterclaim, cross-claim, or third-party complaint. A voluntary dismissal by the claimant by notice as in section 1 of this Rule, shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing. (4n)

Quickie marriages under Article 34 of the Family Code: Is the marriage void if the affidavit of marital cohabitation is false?

Quickie marriages solemnized in some city halls by so-called “ministers” either make use of (a) pre-dated marriage licenses obtained from friendly contacts inside the office of the Local Civil Registrar; or (b) an affidavit of marital cohabitation under Article 34 of the Family Code. The article states:

No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage.

Our senators and members of Congress should consider repealing Article 34 of the Family Code for several reasons:

1. The commission that drafted the Family Code in the late 1980s wanted to delete this provision on ratification of marital cohabitation (Article 76 of the New Civil Code) because it had been abused so much. Even today, mass weddings conducted by mayors use Article 34.

2. Embassies like that of the US, Canada, Australia, etc. are reportedly requiring applicants for immigration to prove that they have complied with the requirements of Article 34. These embassies are asking for proof that indeed the parties that they had indeed cohabited as husband and wife for five consecutive years before the marriage. If such proofs cannot be submitted, the application for immigration is reportedly denied.

My personal view: A man or woman below 23 years of age cannot avail of Article 34

 I was told that some legal counsels of towns or cities have advised Local Civil Registrars that a man or woman aged 18 can make use of Article 34. This would mean that the cohabitation began when the man and woman were just 13 years old! (The term “boy and girl” is really the more appropriate term to use.)

Allowing an 18 year old to use Article 34 is contrary to the Supreme Court decision in the 2000 case of Niñal vs. Bayadog, as cited in the 2008 Dayot case. (In fairness, both the Niñal and Dayot cases involved the New Civil Code, not the Family Code; I believe, however, that they are still good law.) Based on this decision, my personal view is that only men and women who are at least 23 years old can avail of Article 34. The Court said:

The five-year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity - meaning no third party was involved at any time within the 5 years and continuity - that is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse. Marriage being a special relationship must be respected as such and its requirements must be strictly observed. The presumption that a man and a woman deporting themselves as husband and wife is based on the approximation of the requirements of the law. The parties should not be afforded any excuse to not comply with every single requirement and later use the same missing element as a pre-conceived escape ground to nullify their marriage. There should be no exemption from securing a marriage license unless the circumstances clearly fall within the ambit of the exception. It should be noted that a license is required in order to notify the public that two persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar.

Persons below 23 years of age cannot avail of Article 34 of the Family Code. This is because if they are below 23, it means that the cohabitation began when they were below 18. Under Article 35 of the Family Code, no one can get married below the age of 18. As the Supreme Court observed in the Niñal vs. Bayadog case, “The exclusive five-year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage.”

How the Family Code Commission made Article 34 worse

As I pointed out above, the Commission that drafted the Family Code wanted to repeal Article 76 of the New Civil Code (the provision on ratification of marital cohabitation). But the Commission retained the provision as Article 34 of the Family Code on the ground that it had become traditional and that one of its purposes is the legitimation of children.

The Family Code Commission, however, made the provision on marital cohabitation worse. The commission said that the requirement of “without any legal impediment to marry each other” must be present at the time of the marriage and that the requirement need not be present during the five year period of cohabitation. For example, a married man has abandoned his wife and is living in with his mistress for the last five years. The wife dies; can the man now marry the mistress by using Article 34? Based on the Commission's interpretation, the legal impediment (the man's valid marriage) is no longer existing and so the man can now marry the mistress on the basis of their five year cohabitation.

If the affidavit of marital cohabitation is false, the marriage is void

The Supreme Court ruled in the Dayot case that the falsity of an affidavit of marital cohabitation effectively renders the marriage void ab initio for lack of a marriage license. Two things need to be pointed out:

1. The parties cannot take the law into their own hands and declare by themselves that the marriage is void. Under Article 40 of the Family Code they must file a petition to have the marriage declared void because of the falsity of the affidavit of marital cohabitation.

2. The parties who committed the falsification will be criminally liable. Judge Alicia V. Sempio-Diy, a member of the Commission that crafted the Family Code, wrote that “If the parties falsify their affidavit in order to have an instant marriage, although the truth is that they have not been cohabiting for five years, their marriage will be void for lack of a marriage license, and they will also be criminally liable.” (A Handbook on the Family Code of the Philippines, 1995 Ed., p. 38)

Did the Supreme Court order all credit card companies to reduce their interest rate of 3% monthly and penalty fee of 3%?

Index of topics discussed in this post: Supreme Court ruling: 3% monthly or 36% yearly interest is excessive, unconscionable, and exorbitant Implications of the Supreme Court ruling What to do if your credit card company is suing you If the principal amount of the debt is below one hundred thousand pesos, you do not need a lawyer Can a person be charged criminally for non-payment of credit card bills? Facts of the Macalinao vs. BPI case Previous court rulings that 3% monthly interest is excessive Update as of June 30, 2018: RA No. 10870 “An Act Regulating The Philippine Credit Card Industry” (2016) IRR / “Guidelines on the Establishment and Operations of Credit Card Issuers to Implement Republic Act No. 10870 or the Philippine Credit Card Industry Regulations Law” (2018)

Over the years, I have counseled people who were being hounded by collection agencies of credit card companies. These agencies have oftentimes employed obnoxious tactics. In a lot of situations also, people have already paid the principal obligation but they cannot cope with the never-ending interest charges.

In fairness to credit card companies, I think the problems oftentimes begin with people who do not know how to use their credit cards wisely. For some people (fresh out of college and newly employed), having a dozen or more credit cards is a status symbol. When these people go to a mall, their mindset is that of Gen. George Custer: “Charge!”

If you want to know how to live a debt-free life, please surf to the website “Debt-Proof Living” by Mary Hunt. Mary’s story of how she overcame the crushing burden of debts will surely inspire and help you.

Anyway, posted below are the facts and my discussion of the Macalinao ruling of the Supreme Court which provides relief for credit card holders.

Supreme Court ruling in Macalinao vs. BPI and previous cases that 3% monthly or 36% yearly interest is excessive, iniquitous, unconscionable, and exorbitant

BPI filed its case against Ileana Macalinao and her husband with the Metropolitan Trial Court of Makati City in 2004. It asked the couple to pay the amount of PhP 154,608.78 plus 3.25% finance charges and late payment charges equivalent to 6% of the amount due from February 29, 2004 and an amount equivalent to 25% of the total amount due as attorney’s fees, and of the cost of suit.

After going through the Regional Trial Court and the Court of Appeals, Macalinao appealed to the Supreme Court in 2006. The Court in its September 2009 decision penned by Justice Presbitero Velasco Jr. reiterated its ruling in numerous cases dating as far back as 1996 that the interest rate of 3% monthly or 36% per annum is excessive, iniquitous, unconscionable and exorbitant. Partially granting Macalinao’s petition, the Supreme Court reduced the interest rate to 1% monthly and the penalty charge to 1% monthly or a total of 2% per month or 24% per annum. Based on the reduced rate of interest, the Court ruled that Macalinao’s obligation to BPI amounted to only Php 112,309.52.

Implications of the Supreme Court ruling in Macalinao vs. BPI and previous cases

1. Did the Supreme Court order all credit card companies to reduce their interest rates?

No, it did not. Only the Central Bank or Congress can set or legislate interest rates. But in view of the Supreme Court ruling in numerous cases dating as far back as 1996 that interest rates of 3% per month and higher are excessive, the Central Bank or Congress should act accordingly.

2. Can all holders of credit cards from whatever company benefit from the Macalinao ruling?

Yes. How? See [3] below.

3. What to do if you are being sued by the credit card company

Upon receipt of the demand letter from the company or of the summons from the court, you should:

A. Determine from your receipts or proof of payments if the computation of the outstanding principal obligation is correct. If not, then you should raise this issue of incorrect computation either in your reply to the demand letter or in your Answer to the complaint. (The problem in the Macalinao case was that she and her husband did not file their Answer and thus, the METC declared them in default).

B. If the credit card company has imposed the 3% monthly interest or the penalty of 3% monthly, or both, then you should claim the benefit of the Supreme Court ruling in the Macalinao case and in previous cases dating as far back as 1996. You should state in your reply to the demand letter or in your Answer to the complaint that the Supreme Court has ruled that interest rates of 3% per month or higher are excessive, iniquitous, unconscionable and exorbitant. You should then ask the credit card companies for the recomputation of the total amount of interest in view of the Supreme Court ruling.

C. Whether A or B above applies, you should indicate your willingness to pay and ask for the restructuring of the obligation, with the reduced interest rate based on the Macalinao ruling.

D. What if the credit card company continues with the filing of the case despite the reply to the demand letter citing the Supreme Court ruling? Well, then, you have no choice but to file your Answer in court. This means of course that you have to retain the services of a lawyer and pay the lawyer’s fees. Besides claiming in your Answer the benefit of the Supreme Court ruling in the Macalinao case and related cases dating as far back as 1996, you can file a counterclaim for moral damages (harassment by the collection agencies) and actual damages (reimbursement of what you paid as lawyer’s fees), etc.

Note: If the value of the claim does not exceed Php 100,000.00 (excluding interest and costs), then the Small Claims Court has jurisdiction. No lawyers are necessary since the parties are allowed to appear for and by themselves. If efforts at settlement between the parties fail, the hearing shall proceed in an informal and expeditious manner and be terminated within one day. As of now however, not all towns and cities in the Philippines have Small Claims Court.

Can a person be charged criminally for non-payment of credit card bills?

Credit card holders should take note of the following provision of RA 8484 Access Devices Regulation Act of 1998:

A cardholder who abandons or surreptitiously leaves the place of employment, business or residence stated in his application or credit card, without informing the credit card company of the place where he could actually be found, if at the time of such abandonment or surreptitious leaving, the outstanding and unpaid balance is past due for at least ninety (90) days and is more than Ten thousand pesos (P10,000.00), shall be prima facie presumed to have used his credit card with intent to defraud.

The facts of the Macalinao vs. BPI case (G.R. No. 175490, promulgated on September 17, 2009, with Justice Presbitero Velasco Jr. as ponente):

1. Macalinao defaults in the payment of the credit card purchases; BPI sends demand letter

Ileana Macalinao was an approved cardholder of BPI Mastercard, one of the credit card facilities of the Bank of the Philippine Islands (BPI). Macalinao made some purchases using her credit card and defaulted in paying for the purchases. She subsequently received a letter dated January 5, 2004 from BPI, demanding payment of the amount of PhP 141,518.34.

2. Terms and conditions of the use of the credit card

Under the “Terms and Conditions Governing the Issuance and Use of the BPI Credit and BPI Mastercard”, the charges or balance of the obligation remaining unpaid after the payment due date indicated on the monthly Statement of Accounts shall bear interest at the rate of 3% per month and with an additional penalty fee equivalent to another 3% of the amount due for every month or a fraction of a month’s delay.

3. BPI files collection case with the Metropolitan Trial Court (MeTC) of Makati City

For failure of Macalinao to settle her obligations, BPI filed with the Metropolitan Trial Court (MeTC) of Makati City a complaint for a sum of money against her and her husband, Danilo SJ. Macalinao. This was raffled to Branch 66 of the MeTC and was docketed as Civil Case No. 84462 entitled Bank of the Philippine Islands vs. Spouses Ileana Dr. Macalinao and Danilo SJ. Macalinao.

4. BPI’s claims for payment

In the complaint, BPI asked for the payment of the amount of one hundred fifty-four thousand six hundred eight pesos and seventy-eight centavos (PhP 154,608.78) plus 3.25% finance charges and late payment charges equivalent to 6% of the amount due from February 29, 2004 and an amount equivalent to 25% of the total amount due as attorney’s fees, and of the cost of suit.

5. MeTC declares Macalinao in default for failure to file Answer

After the summons and a copy of the complaint were served upon Macalinao and her husband, they failed to file their Answer. Thus, BPI asked the court that judgment be rendered in accordance with Section 6 of the Rule on Summary Procedure. This was granted in an Order dated June 16, 2004. Thereafter, BPI submitted its documentary evidence.

6. MeTC orders Macalinao to pay but reduces amount of interest

In its decision dated August 2, 2004, the MeTC ruled in favor of BPI and ordered Macalinao and her husband to pay the amount of PhP 141,518.34 plus interest and penalty charges of 2% per month (instead of the contractually stipulated rate of interest of 3%).

7. On appeal, the Regional Trial Court affirms the MeTC decision

Macalinao and her husband then appealed to the Regional Trial Court (RTC) of Makati City. The RTC in its decision dated October 14, 2004 affirmed in toto (in whole) the decision of the MeTC and held:

In any event, the sum of P141,518.34 adjudged by the trial court appeared to be the result of a recomputation at the reduced rate of 2% per month. Note that the total amount sought by the plaintiff-appellee was P154,608.75 exclusive of finance charge of 3.25% per month and late payment charge of 6% per month.

8. Upon review, the Court of Appeals modifies the computation of the principal obligation and pegs the interest rate at 1.5% monthly and the penalty charge 1.5% monthly (or a total of 3% monthly)

Unconvinced, Ileana Macalinao filed a petition for review with the Court of Appeals. (At this point in time, her husband had already died). The CA affirmed the decision of the RTC but modified the computation of the principal obligation and the rate of monthly interest and penalty charges. The CA pegged the interest rate at 1.5% monthly and the penalty charge 1.5% monthly (or a total of 3% monthly). The CA ruled:

WHEREFORE, the appealed decision is AFFIRMED but MODIFIED with respect to the total amount due and interest rate. Accordingly, petitioners are jointly and severally ordered to pay respondent Bank of the Philippine Islands the following:

1. The amount of One Hundred Twenty Six Thousand Seven Hundred Six Pesos and Seventy Centavos plus interest and penalty charges of 3% per month from January 5, 2004 until fully paid;
2. P10,000.00 as and by way of attorney’s fees; and
3. Cost of Suit.

9. Macalinao appeals to the Supreme Court citing three errors of the CA

After Macalinao’s Motion for Reconsideration was denied by the CA, she appealed to the Supreme Court. In her appeal, Macalinao stated that the CA committed three errors, namely:

I. The reduction of interest rate, from 9.25% to 2%, should be upheld since the stipulated rate of interest was unconscionable and iniquitous, and thus illegal.

II. The Court of Appeals arbitrarily modified the reduced rate of interest from 2% to 3%, contrary to the tenor of its own decision.

III. The Court of Appeals, instead of proceeding with a recomputation, should have dismissed the case for failure of respondent BPI to prove the correct amount of petitioner’s obligation, or in the alternative, remanded the case to the lower court for respondent BPI to present proof of the correct amount thereof.

10. Supreme Court rules that Macalinao should only pay only 1% monthly interest and 1% penalty charge

The Supreme Court ruled partially in favor of Macalinao. On the negative side, the Court refused to either dismiss or remand the case to the METC for recomputation of the correct amount. On the positive side, the Court modified the CA ruling:

Thus, under the circumstances, the Court finds it equitable to reduce the interest rate pegged by the CA at 1.5% monthly to 1% monthly and penalty charge fixed by the CA at 1.5% monthly to 1% monthly or a total of 2% per month or 24% per annum in line with the prevailing jurisprudence and in accordance with Art. 1229 of the Civil Code.

In view of the ruling that only 1% monthly interest and 1% penalty charge can be applied to the beginning balance of PhP 94,843.70, the Court ruled that Macalinao’s obligation to BPI amounted to only Php 112,309.52.

11. The Supreme Court has ruled in numerous cases that 3% monthly or 36% yearly interest is excessive, iniquitous, unconscionable and exorbitant

The Supreme Court has ruled in numerous cases dating as far back as 1996 that the interest rate of 36% per annum is excessive, iniquitous, unconscionable and exorbitant:

Indeed, in the Terms and Conditions Governing the Issuance and Use of the BPI Credit Card, there was a stipulation on the 3% interest rate. Nevertheless, it should be noted that this is not the first time that this Court has considered the interest rate of 36% per annum as excessive and unconscionable.

The stipulated interest rates of 3% per month and higher are excessive, iniquitous, unconscionable and exorbitant. Such stipulations are void for being contrary to morals, if not against the law. While C.B. Circular No. 905-82, which took effect on January 1, 1983, effectively removed the ceiling on interest rates for both secured and unsecured loans, regardless of maturity, nothing in the said circular could possibly be read as granting carte blanche authority to lenders to raise interest rates to levels which would either enslave their borrowers or lead to a hemorrhaging of their assets.

The same is true with respect to the penalty charge. Notably, under the Terms and Conditions Governing the Issuance and Use of the BPI Credit Card, it was also stated therein that respondent BPI shall impose an additional penalty charge of 3% per month. Pertinently, Article 1229 of the Civil Code states:

Art. 1229. The judge shall equitably reduce the penalty when the principal obligation has been partly or irregularly complied with by the debtor. Even if there has been no performance, the penalty may also be reduced by the courts if it is iniquitous or unconscionable.

In exercising this power to determine what is iniquitous and unconscionable, courts must consider the circumstances of each case since what may be iniquitous and unconscionable in one may be totally just and equitable in another.

Previous Supreme Court rulings that 3% monthly interest is excessive

As stated above, the Supreme Court has already ruled in cases before its 2009 Macalinao vs. BPI decision that an interest rate of 3% monthly or 36% per annum is excessive, iniquitous, unconscionable and exorbitant. These cases are the following:

(1) Almeda v. Court of Appeals, G.R. No. 113412, April 17, 1996, 256 SCRA 292, 302

(2) Medel v. Court of Appeals, G.R. No. 131622, November 27, 1998, 299 SCRA 481

(3) Solangon v. Salazar, G.R. No. 125944, June 29, 2001, 360 SCRA 379, 384-385

(4) Ruiz v. Court of Appeals, G.R. No. 146942, April 22, 2003, 401 SCRA 410, 421

(5) Cuaton v. Salud, G.R. No. 158382, January 27, 2004, 421 SCRA 278, 282

(6) Imperial v. Jaucian, G.R. No. 149004, April 14, 2004, 427 SCRA 517, 525-526

(7) Dio v. Japor, G.R. No. 154129, July 8, 2005, 463 SCRA 170, 177

(8) Dino v. Jardines, G.R. No. 145871, January 31, 2006, 481 SCRA 226

(9) Macalalag v. People, G.R. No. 164358, December 20, 2006, 511 SCRA 400

Legal Procedures 23: Default or failure to answer

Note: Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

[1] If the defendant fails to file his Answer within the prescribed period of time, then the plaintiff may file a motion, with due notice to the defendant, asking the court to declare the defendant in default. (Once declared in default, the defendant cannot participate in the hearings, but he is entitled to all notices.)

[2] Defaults are not allowed in legal separation, annulment, or declaration of the nullity of marriage. Please read the related post What happens in an annulment case if the respondent fails to file an Answer?

[3] In cases falling under the Rules on Summary Procedure, there is no declaration of default. If the defendant or respondent fails to file his Answer, then the complainant or petitioner can ask the court to render judgment.

[4] Effect of a partial default - when a complaint states a common cause of action against several defendants, some of whom answer and the others do not, but the answer alleges a common defense, the court shall try the case against all upon the answer thus filed and render judgment

[5] A judgment rendered against a party declared in default shall not exceed the amount or be different in kind from that prayed for, nor award unliquidated damages.

[6] Why do people fail to file their Answer?

A. Some people do not understand how the deadline set by the court for filing an Answer is computed. Normally, the court gives a fifteen-day period from the receipt of the summons for the filing of the Answer. The term “day” refers to calendar days, meaning, holidays and weekends are counted. If the last day falls on a holiday or a weekend, the Answer can be filed on the next working day.

B. Some people think that if they refuse to receive the summons from the court, the process will not proceed. This is wrong. If the person named as defendant or respondent in the summons does not want to accept it, the court sheriff or process server will “tender” the summons. The summons is considered as having been served on the defendant or respondent. The court sheriff or process server will then issue a “return” or certificate that he tendered the summons to the defendant or respondent. The period for filing the Answer thus begins from the time the summons was tendered.

C. Some people out of fear, ignorance, etc. do not give any attention to the summons. When they do consult a lawyer, it is usually after the period for filing the Answer has already lapsed.

Remedies of a party declared in default

A. If the court grants the motion to declare the defendant in default is granted:

• The court issues an order of default and renders its judgment, unless it requires the plaintiff to submit his evidence (in ex-parte proceedings before the court itself or a commissioner).
• Before the judgment is rendered, the defendant may file a motion under oath to set aside the order of default upon proof that his failure to answer was due to fraud, accident, mistake or excusable neglect (also known as FAME), and that he has a meritorious defense.

B. If the defendant’s motion to set aside the order of default is denied, then the plaintiff presents his evidence ex-parte.

• If the plaintiff proves his allegations, then the court renders judgment by default.
• (The defendant however still has some remedies available in this kind of situation)
• If the plaintiff is not able to prove his allegations, then the court dismisses the case.

C. The order of default may be set aside on terms imposed by the judge. The defendant then files his answer. The case is then set for pre-trial (upon motion of the plaintiff).

Legal Procedures 22: Filing of complaint and answer in civil cases

Supreme Court materials on the new system known as “Face-to-Face Trial” A.M. No. 14-03-02-SC, March 8, 2014 that’s meant to speed up the resolution of case (external link)

Note: Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

The usual way a civil case proceeds

1. The plaintiff files the complaint against the defendant and pays the filing fees with the Office of the Clerk of Court. The case is raffled off to a specific court branch.

2. The process server or the court sheriff serves the summons by handing it personally to the defendant, or if he refuses to receive and sign for it, by tendering it to him. In certain cases, summons may be published in a newspaper. (Please read Rule 14 - Summon.)

3. The summons is not served because:

(a) the plaintiff loses interest in pursuing the case by filing a notice of dismissal;

(b) the defendant cannot be located at the address stated in the complaint (the court may then issue an alias summons).

4. Jurisdiction over the defendant is acquired by his receipt of the summons. If it cannot be served, the court provisionally dismisses the case (that is, without prejudice to its revival once the defendant is located).

5. Defendant may file either (a) an answer or (b) a motion to dismiss. This must be submitted within fifteen days from receipt of the summons. The period to answer however may be extended by the court upon motion. (Please read Rule 11 - When to file responsive pleadings.)

6. If the court denies the motion to dismiss, the defendant must file his answer within the remaining time (which must not be less than five days from his receipt of the notice of denial). The practice of some judges is to require the defendant to file an answer and not a motion to dismiss. In such a case, the defendant must allege the grounds for dismissal as affirmative defenses in his answer.

Additional things to consider

(a) Before filing an answer, the defendant may file a “bill of particulars” pointing out defects in the complaint, the details desired, the vague allegations, etc. (Please read Rule 12 - Bill of particulars.)

(b) Husband and wife generally shall sue or be sued jointly since both are co-administrators of the community property or the conjugal partnership property. (Please read Rule 3 - Parties to civil actions.)

(c) The requirements for a class suit are common or general interest in the subject matter of the case, and the affected persons are so numerous that it is impracticable to join them all as parties.

(d) In case of transfer of interest, the action may be continued by or against the original party, unless the court directs the transferee to be substituted in the action or joined with the original party.

(e) The complaint must contain a certification against forum shopping. If there is none, the court will dismiss the complaint

(f) The venue of personal actions is the court of the place where the plaintiff (or any of the principal plaintiffs) resides, or where the defendant (or any of the principal defendants) resides, at the election of the plaintiff.

Forcible entry and unlawful detainer cases, and those involving title or possession of real property with an assessed value of Php 50,000. (in Metro Manila) shall be tried in the MTC wherein the real property involved or a portion thereof is situated.

The rules on venue however shall not apply in cases where a specific rule or law applies, and when the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. (Please read Rule 4 - Venue of actions.)

(g) Venue: Where should the case be filed if there are several complainants?

The Supreme Court ruled in “Irene Marcos-Araneta, Daniel Rubio, Orlando G. Reslin, And Jose G. Reslin, Petitioners, vs. Court Of Appeals, Julita C. Benedicto, And Francisca Benedicto-Paulino, Respondents” that the case must be filed in the proper court of the residence of the principal complainant, as Sec. 2 of Rule 4 provides. The Court ruled:

Irene was a resident during the period material of Forbes Park, Makati City. She was not a resident of Brgy. Lacub, Batac, Ilocos Norte, although jurisprudence[44] has it that one can have several residences, if such were the established fact. The Court will not speculate on the reason why petitioner Irene, for all the inconvenience and expenses she and her adversaries would have to endure by a Batac trial, preferred that her case be heard and decided by the RTC in Batac. On the heels of the dismissal of the original complaints on the ground of improper venue, three new personalities were added to the complaint doubtless to insure, but in vain as it turned out, that the case stays with the RTC in Batac.

Litigants ought to bank on the righteousness of their causes, the superiority of their cases, and the persuasiveness of arguments to secure a favorable verdict. It is high time that courts, judges, and those who come to court for redress keep this ideal in mind.

(h) Difference between personal action and real action:

In a personal action, the plaintiff seeks the recovery of personal property, the enforcement of a contract, or the recovery of damages.

Real actions, on the other hand, are those affecting title to or possession of real property, or interest therein.

In accordance with the wordings of Sec. 1 of Rule 4, the venue of real actions shall be the proper court which has territorial jurisdiction over the area wherein the real property involved, or a portion thereof, is situated.

The venue of personal actions is the court where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff. (Irene Marcos-Araneta vs. CA)

(i) Rules on indigent litigants (Spouses Algura v. The Local Government Unit of the City of Naga, et al. GR No. 150135, October 30, 2006)

Who is an indigent under Section 19 of Rule 141?

(1) The applicant’s gross income and that of the applicant's immediate family do not exceed an amount double the monthly minimum wage of an employee; and

(2) The applicant does not own real property with a fair market value of more than Three Hundred Thousand Pesos (PhP 300,000.00).

If the trial court finds that the applicant meets the income and property requirements, the authority to litigate as indigent litigant is automatically granted and the grant is a matter of right.

If the applicant for exemption meets the salary and property requirements under Sec. 19 of Rule 141, then the grant of the application is mandatory. On the other hand, when the application does not satisfy one or both requirements, then the applicant should not be denied outright; instead the court should apply the ‘indigency test’ under Section 21 of Rule 3 and use its sound discretion in determining the merits of the prayer for exemption.”

1997 Rules of Civil Procedure
Rule 1 – General Provisions

Rule 2 – Cause of action

Rule 3 – Parties to civil actions

Rule 4 – Venue of actions

Rule 5 – Uniform procedure in trial courts

Rule 6 – Kinds of pleadings

Rule 7 – Parts of a pleading

Rule 8 – Manner of making allegations in pleadings

Rule 9 – Effect of failure to plead

Rule 10 – Amended and supplemental pleadings

Rule 11 – When to file responsive pleadings

Rule 12 – Bill of particulars

Rule 13 – Filing and service of pleadings, judgments and other papers

Rule 14 – Summons

Rule 15 – Motions

Rule 16 – Motion to dismiss

Protection Order for abused husbands?

The Supreme Court has already ruled that the Protection Orders under RA 9262 cannot be used against a woman. The Court has in fact reprimanded or suspended several Family Court judges for issuing a TPO or a PPO against a woman (read, for example, “SC Dismisses Makati Family Court Judge, Stenographer”). Please read my previous posts:

• Hope and help for the battered woman (2): RA 9262 essential provisions
• Hope and help for the battered woman (3): RA 9262 Protection Orders

What about the rights of an abused husband?

I have received e-mails from men who have detailed how their wives have hurt, harassed or threatened them. A husband who has been physically hurt or is being abused by his wife can file the appropriate case under the Revised Penal Code. The question is, while the criminal case is ongoing, can he ask the court to issue an order requiring the wife to stay away from him? This is legally doubtful.

But, in petitions involving legal separation, annulment of voidable marriage or declaration of nullity of marriage, it can be argued that the “Supreme Court Rule on Provisional Orders” A.M. No. 02-11-12-SC provides the legal basis for a husband to ask the court to issue an order requiring his wife, among other things, to stay away from him so as to prevent any further harm. Let me explain.

The said Rule enumerates the procedures that our Family Court judges must follow in deciding the issue of custody and amount of financial support in relation to petitions for legal separation, annulment of voidable marriage or declaration of nullity of marriage. Please take note that:

1. This Rule became effective in 2003 or before RA 9262 “Anti-Violence Against Women and Their Children Act of 2004” became effective in 2004; and

2. This Rule applies specifically to petitions for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation.

RA 9262 has its own Implementing Rules and Regulations and Rule on Violence Against Women and Their Children A.M. No. 04-10-11-SC. The speakers (active and retired Family Court judges) in the Mandatory Continuing Legal Education seminars I am attending say that they also use the Rule on Provisional Orders as guideline in granting orders in RA 9262 cases whenever appropriate.

Interestingly, under Section 7 of the Supreme Court Rule on Provisional Orders, ANY PERSON involved in petitions for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation, can ask for the issuance of an Order of Protection. Since Section 7 of the Rule speaks of “any person” seeking the Order of Protection, it can be argued that the husband, whether as petitioner or respondent, can ask the court for such order if the wife harasses, intimidates or threatens him. The Rule states:

Section 7. The court may issue an Order of Protection requiring any person:

(a) to stay away from the home, school, business, or place of employment of the child, other parent or any other party, and to stay away from any other specific place designated by the court;

(b) to refrain from harassing, intimidating, or threatening such child or the other parent or any person to whom custody of the child is awarded;

(c) to refrain from acts of commission or omission that create an unreasonable risk to the. health, safety, or welfare of the child;

(d) to permit a parent, or a person entitled to visitation by a court order or a separation agreement, to visit the child at stated periods;

(e) to permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court;

(f) to comply with such other orders as are necessary for the protection of the child.

As I said, I have been attending the MCLE for the last two Saturdays. One of the speakers, a retired judge, said that she had issued an Order of Protection for a husband. She said, however, that husbands in general do not ask for such an order since no supposedly macho Filipino would want to admit that he is being physically abused by his wife.

How do courts determine which parent has the right of custody of the children in legal separation, annulment or declaration of nullity?

Please read my previous posts on the issue of custody: Can a mother be deprived of custody of her child? Custody battles over children: what determines fitness of a parent over another? Custody battles over children between grandparents and a father or mother

The Supreme Court Rule on Provisional Orders A.M. No. 02-11-12-SC enumerates the procedures that our Family Court judges must follow in deciding the issue of custody in relation to petitions for legal separation, annulment of voidable marriage or declaration of nullity of marriage. Please take note that:

1. This Rule became effective in 2003 or before RA 9262 “Anti-Violence Against Women and Their Children Act of 2004” became effective in 2004; and

2. This Rule applies specifically to petitions for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation.

RA 9262 has its own Implementing Rules and Regulations and Rule on Violence Against Women and Their Children A.M. No. 04-10-11-SC. The speakers (active and retired Family Court judges) in the MCLE seminars that I am attending say that they also use the Rule on Provisional Orders as guidelines in granting orders in RA 9262 cases whenever appropriate.

Main guideline for award of custody: Best interests of the child

Section 4 of the Supreme Court Rule on Provisional Orders states:

In determining the right party or person to whom the custody of the child of the parties may be awarded pending the petition, the court shall consider the best interests of the child and shall give paramount consideration to the material and moral welfare of the child.

The court may likewise consider the following factors:

(a) the agreement of the parties;

(b) the desire and ability of each parent to foster an open and loving relationship between the child and the other parent;

(c) the child’s health, safety, and welfare;

(d) any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent;

(e) the nature and frequency of contact with both parents;

(f) habitual use of alcohol or regulated substances;

(g) marital misconduct;

(h) the most suitable physical, emotional, spiritual, psychological and educational environment; and

(i) the preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit.

Order of preference in the award of custody

In keeping with Articles 214 and 216 of the Family Code, Section 6 of the Supreme Court Rule states:

The court may award provisional custody in the following order of preference:

(1) to both parents jointly;

(2) to either parent taking into account all relevant considerations under the foregoing paragraph, especially the choice of the child over seven years of age, unless the parent chosen is unfit;

(3) to the surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or disqualified;

(4) to the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified;

(5) to the child’s actual custodian over twenty-one years of age, unless unfit or disqualified; or

(6) to any other person deemed by the court suitable to provide proper care and guidance for the child.

The custodian temporarily designated by the court shall give the court and the parents five days notice of any plan to change the residence of the child or take him out of his residence for more than three days provided it does not prejudice the visitation rights of the parents.

Section 5 of the Rule states that “appropriate visitation rights shall be provided to the parent who is not awarded provisional custody unless found unfit or disqualified by the court.”

Hold Departure Order for children while the petition for legal separation, annulment or declaration of nullity is ongoing

The Supreme Court Rule on Provisional Orders A.M. No. 02-11-12-SC enumerates the procedures that our Family Court judges must follow on these issues of custody, amount of financial support and Hold Departure Orders for children. Please take note that:

(1) This Rule became effective in 2003 or before RA 9262 “Anti-Violence Against Women and Their Children Act of 2004” became effective in 2004; and

(2) This Rule applies specifically to petitions for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation.

RA 9262 has its own Implementing Rules and Regulations and Rule on Violence Against Women and Their Children A.M. No. 04-10-11-SC. The speakers (active and retired Family Court judges) in the MCLE seminars I am attending say that they also use the Rule on Provisional Orders as guidelines in granting orders in RA 9262 cases whenever appropriate.

With regards Hold Departure Orders for children, Section 6 of the Supreme Court Rule on Provisional Orders states:

Pending resolution of the petition, no child of the parties shall be brought out of the country without prior order from the court.

The court, motu proprio or upon application under oath, may issue ex-parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the child from the Philippines without the permission of the court.

The Family Court issuing the hold departure order shall furnish the Department of Foreign Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy of the hold departure order issued within twenty-four hours from the time of its issuance and through the fastest available means of transmittal.

The hold-departure order shall contain the following information:
(a) the complete name (including the middle name), the date and place of birth, and the place of last residence of the person against whom a hold-departure order has been issued or whose departure from the country has been enjoined;

(b) the complete title and docket number of the case in which the hold departure was issued;

(c) the specific nature of the case; and

(d) the date of the hold-departure order.

If available, a recent photograph of the person against whom a hold-departure order has been issued or whose departure from the country has been enjoined should also be included,

The court may recall the order, motu proprio or upon verified motion of any of the parties after summary hearing, subject to such terms and conditions as may be necessary for the best interests of the child.

Legal Procedures 20: Extinction and prescription of the crime; civil liability

Notes: (1) Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

(2) Criminal liability may be extinguished either totally (Art. 89, Revised Penal Code) or partially (Art. 94).

Total extinction takes place under the following:

(a) death of the convict
(b) service of sentence
(c) amnesty
(d) absolute pardon
(e) prescription of the crime
(f) prescription of the penalty
(g) marriage of the offended woman, in private offenses, as provided by Art. 344 RPC

Prescription of the crime - it is the forfeiture or the loss of the right of the State to prosecute the offender after the lapse of a certain period of time fixed by law (Art. 90, RPC)

Prescription of the penalty - it is the loss or forfeiture of the right of the State to execute the final sentence after the lapse of a certain period of time fixed by law (Art. 92, RPC).

Period of prescription of crimes punished by:

(a) death, reclusion perpetua and reclusion temporal - 20 years;

(b) other afflictive penalties - 15 years;

(c) correctional penalties - 10 years except arresto mayor which prescribes in 5 years;

(d) oral defamation and slander by deed - 6 months;

(e) light offenses - 2 months.

The prescriptive period for violation of Batas Pambansa Blg. 22 (bouncing checks) is 4 years.

Computation of the period of prescription of penalties

The period commences to run from the date the culprit evades the service of the sentence. It is interrupted:

(a) if the defendant surrenders;

(b) if he is captured;

(c) if he should go to a foreign country with which the Philippines has no extradition treaty; and

(d) if he should commit another crime before the expiration of the period of prescription (Art. 93, RPC).

Partial extinction of criminal liability, Art. 94, RPC : (1) conditional pardon; (2) commutation of sentence; (3) good conduct allowances during confinement; (4) parole; (5) probation.

Civil liability includes:

(1) restitution - the return or restoration of the thing;

(2) reparation of the damage caused - the court determines the amount of damages by considering the price of the thing itself, and its special sentimental value to the offended party;

(3) indemnification for consequential damages - includes those caused to the injured party and those suffered by a third person by reason of the crime. (Art. 100 up to 113, RPC)

Legal lessons from the Kris Aquino - James Yap breakup: legal separation, annulment, declaration of nullity, requisites of marriage

Related post: Kris Aquino and James Yap cannot adopt Bimby jointly or sequentially; only one of them can adopt Bimby

Note as of August 18, 2010:

From the remarks made by the lawyer of James Yap, it seems that Kris and James got married twice before the same officiating minister. They had to get married again since in the first marriage, there was no parental advice from James’ mother.

(The news reports said that since James was only 23 years old at the time of the marriage, he needed parental consent for the marriage. This is wrong. Under the Family Code, persons from age 21 to 25 need parental advice, not parental consent. News reporters and their editors should really take the time to learn the basics of the Family Code.)

The questions are (1) Which marriage is considered as the official marriage, the first or the second? and (2) Did Kris and James obtain a marriage license for either the first or second marriage, or did they avail of Article 34?

Article 40 of the Family Code states that for purposes of remarriage, there must first be a declaration of nullity of the first marriage. But this provision contemplates a situation where the man or woman gets married the second time around to a different person (not the spouse in the first marriage). In Kris and James’ case, they got married to each other twice. As the saying goes, “things are getting curiouser and curiouser ...”

Note as of August 13, 2010:

According to various news reports on television, newspapers and the Internet, the grounds for Kris’s petition for declaring her marriage with James Yap void are:

1. The lack of authority of the solemnizing officer Rayda P. Tumaliuan, a minister of Holy Sacrament International Church, based on Article 35, paragraph (2) of the Family Code. (Several weeks ago, ABS-CBN reported that it was former Quezon City Mayor Sonny Belmonte who solemnized the marriage, and that Kris and James got married without a license)

2. Neither Kris nor James belonged to the minister’s religious sect contrary to what Article 7, paragraph (2) of the Family Code provides.

Since this case is already in court, I will not discuss its merits. But Article 35, paragraph (2) clearly provides for an exception which news reports failed to point out. The exception states: “If one or both parties believe in good faith that the solemnizing officer had the authority, then the marriage is valid.”

As to the issue that neither Kris nor James belonged to the denomination of the solemnizing officer, the news reports also failed to mention that there are two kinds of requisites of marriage under the Family Code: essential (Article 2) and formal (Article 3). I discussed below what these requisites are.

Article 4 of the Family Code states the effect of the absence or defect in the requisites:

The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35, paragraph (2).

A defect in any of the essential requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable.

Justice Paras in his “Pre-Week Handbook in Civil Law” summarizes Article 4 in this way:

• Absence of any of the essential requisites – the marriage is void ab initio.
• A defect in any of the essential requisites – the marriage is voidable.
• Absence of any of the formal requisites – the marriage is void ab initio.
• An irregularity in any of the formal requisites – the marriage is valid but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable.

It seems to me that the novel (and interesting) issue that the court will decide is whether the non-membership of Kris and James in the denomination of the solemnizing officer is an absence or merely an irregularity (defect) in a formal requisite of marriage. If it is an absence, then the marriage is void. If it is merely an irregularity or a defect, then the marriage is valid.
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Last night, ABS-CBN’s TV Patrol showed an exclusive interview by Marie Lozano with the lawyers retained by Kris Aquino to end her marriage to James Yap. Kris’s lawyers said that she is seeking the declaration of nullity of her marriage and not simply a legal separation. Lozano then stated the background for the petition. It seems that Kris and James got married in Boy Abunda’s house with Quezon City Mayor Sonny Belmonte officiating the marriage. As the news report revealed however, Kris and James did not have a marriage license. It was only the day after the “wedding” that Kris got a marriage license from Makati.

(You can read the TV Patrol report by Marie Lozano in the ABS-CBN website; the problem is, Lozano isn’t a lawyer, and, so, she didn’t know what the right questions should have been. Or maybe, as a condition for the exclusive interview, she might have been told beforehand what questions to ask and what not to ask. Incidentally, Lozano’s report as you can still view in YouTube or in the embedded video above, uses a page from my Family Matters website as the background graphic in the 1:51 mark. Thanks a million!)

What legal lessons can we learn from this situation? The breakup of any marriage is a tragic event. What makes this situation between Kris and James (and Baby James) even more tragic is that, since they are both celebrities, their breakup is a very public event. One good thing that can possibly come out of this situation is that Filipinos, as they follow the developments o radio, TV and the Internet, will learn about Philippine laws on marriage and the family.

Differences among legal separation, annulment of voidable marriage and declaration of nullity of void marriage

Legal separation is different from annulment, and for that matter, annulment is different from declaration of nullity. Legal separation is governed by Articles 55 to 67 of the Family Code; if the court grants the petition, the spouses are separated but their marriage bond remains. This means that the couple cannot marry other parties, and the woman is still bound to use her husband’s surname. These are the reasons why Filipino couples in trouble do not want to file for legal separation.

“Annulment” refers to voidable marriages under Articles 45 and 46 of the Family Code. On the other hand, “declaration of nullity,” which Kris is seeking, refers to void marriages under Articles 35 to 41. Filipinos, who do not know the difference, generically use the term “annulment” to refer to both processes. The difference between legal separation on one side, and annulment and declaration of nullity, on the other, is that in the latter two cases, the spouses can later on get married to other parties. Annulment and declaration of nullity are not divorces; we do not have a divorce law in the Philippines. In divorce, the grounds arose after the marriage, while in declaration of nullity, the grounds were already there even before the marriage. In practical effect however, annulment and declaration of nullity are the same as a divorce; the couple (once their marriage has been dissolved) can marry other parties.

Essential and formal requisites of marriage

Unlike what some people think, Kris and James's marriage is valid even if it took place in Boy Abunda’s house and not in a church or in the mayor’s office. The ground for Kris’s petition for declaration of nullity is that she and James did not have a marriage license. They got the marriage license AFTER the wedding. The Family Code provides two requisites for marriage – essential and formal. Article 2 of the Family Code states what the essential requisites are:

Art. 2. No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of the contracting parties who must be a male and a female; and (2) Consent freely given in the presence of the solemnizing officer.

As the term denotes, the essential requisites are well, essential. Without the essential requisites, the marriage is void. (Please take note, however, of my discussion on Article 40 of the Family Code below.)

Difference between parental consent and parental advice; minimum marrying age under the Family Code different from the New Civil Code

The Family Code states that the minimum marrying age is 18; the marriage is void for anyone who gets married below 18 even if such marriage had the consent of the parents. For persons between 18 to 21, parental consent is necessary for marriage. For persons above 21 (and one day) to 25, only parental advice is needed. If there is no parental advice or if the advice is adverse, there is a mandatory waiting period of three months before the marriage license is issued. For persons above 25 (and one day), no parental consent or advice is necessary.

The Family Code of the Philippines became effective on August 3, 1988. Before the Family Code became efective, the prevailing law on marriage was the New Civil Code of the Philippines. Under the NCC, the minimum marrying age was 14 for women and 16 for men.

Lack of a valid marriage license makes the marriage void

The marriage license is a formal requisite as Article 3 of the Family Code states:

Art. 3. The formal requisites of marriage are: (1) Authority of the solemnizing officer; (2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and (3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age.

Kris’s petition for declaration of nullity is based on Article 4 which states: “The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2).” The Family Code states exceptions when a marriage license is not required but these exceptions apparently dd not apply to Kris and James. (The exception in Article 35, paragraph 2 refers to a marriage solemnized by a person not legally authorized to do so; if any or both parties believed on good faith, however, that the solemnizing officer had the proper authority, the marriage is considered valid.)

Problems and questions with Kris’s petition

But if Kris and James got their marriage license only after the wedding, what did they state in their marriage certificate as to the date of their wedding? Did they make it appear in the marriage certificate that they got married after they obtained the license? If the marriage certificate shows that the date of the wedding is BEFORE the date of the issuance of the marriage license, then Kris may possibly use this as the basis for her petition.

If Kris and James made it appear in the marriage certificate, however, that they got married AFTER the issuance of the license, then Kris’s petition will run against the principle of equity. This principle states that “A person who comes to court must come with clean hands. This simply means that the court may dismiss Kris’s petition on the basis of equity since Kris and James brought this problem upon themselves. A public document on the files of the National Statistics Office like a marriage certificate is presumed regular. Will Kris be admitting in her petition that she misstated the date in her marriage certificate? On the basis of the presumption of regularity of public documents, the court may not believe Kris’s claim. The court can possibly say that Kris’s claim cannot be given any credence since it is self-serving. (The term “self-serving” has a technical legal meaning.)

If Kris will be claiming in her petition that she got her license after the wedding or that she misstated the date in her marriage certificate, she will put solemnizing officer Mayor (now Congressman) Sonny Belmonte in a very difficult situation. Mayor Belmonte, in compliance with the Family Code, should have required Kris and James to present to him their marriage license before he solemnized the marriage. I’m sure his political rivals will use this issue against him.

(The Family Code, which became effective in August 1988, removed from mayors the authority to solemnize marriages. But the Local Government Code of 1991 brought back to mayors this authority. I have been told that, in many towns and cities, the mayors simply sign the marriage certificate, with someone else conducting the actual marriage ceremonies.)

Difference between absence and defect in the requisites of marriage

Please take note of the difference between the absence of a marriage requisite and a defect in the requisite.

• The lack or absence of an essential or formal requisite makes the marriage void.
• A defect in the essential requisite does not affect the validity of the marriage, but there can be civil, criminal and administrative liabilities for the party or parties involved in the irregularity (second paragraph of Article 4).

Marriage contract or certificate is not an essential or formal requisite of marriage

The marriage contract or certificate is not an essential or formal requisite of marriage under the Family Code. Even if there is no copy of the marriage certificate in the files of the National Statistics Office, it cannot be said that the marriage is void. The existence or validity of the marriage can still be established through the marriage license, testimonies of the solemnizing officer and witnesses, etc.

Even if the marriage is void, there must be a court judgment declaring the marriage void

Article 40 of the Family Code provides that even if the marriage is void, the parties involved cannot take the law into their own hands and declare by themselves that the marriage is void. Under Article 40 of the Family Code, the party or parties should file a petition to have their marriage declared as void. If any party to a void marriage gets married again without complying with Article 40, he or she can be charged with bigamy.

What will be the status of Baby James? Parental authority and custody

If and when the marriage is declared void for lack of a valid marriage license, what will be the status of Baby James? This is an unclear legal issue at this point in time. Article 54 of the Family Code states: “Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.” Please take note that Kris’s petition, according to the news report, will not be for annulment of a voidable marriage or a declaration of nullity based on Article 36 (psychological incapacity). Her petition will be based on Article 4 or the absence of a formal requisite - the marriage license. Thus, Article 54 may possibly not apply to Baby James, that is, he may not be considered legitimate. We will have to wait for the court judgment on this issue.

If and when the marriage is declared void and Baby James is considered illegitimate, there is, however, a way he can become legitimate. Kris can file for adoption under RA 8552 “Domestic Adoption Act of 1998, and Baby James will become her legitimate child. If Baby James is adopted by Kris, can he later on be adopted by his father James? No; Article 187 of the Family Code states that “a person who has been adopted can no longer be adopted unless such adoption has been revoked or rescinded.”

But the Family Code provisions on adoption (Articles 183 to 193) have been superseded by RA 8552; for one thing, rescission of adoption is no longer allowed. Based merely on Article 187, however, it would seem that James can no longer adopt Baby James if and when he has already been adopted by Kris.

A question of surnames

If and when Kris’s petition for declaration of nullity is granted by the court, she will be able to use her maiden surname again. What about Baby James’s surname? Will it be changed to “Aquino” and no longer be “Yap”? The court can possibly rule that based on the legal principle of “best interests of the child,” Baby James can continue using his father’s surname.

But if the court rules in favor of Kris and orders the change of Baby James’s surname to “Aquino,” what can James do? Well, he can insist that Baby James continue using “Yap” in his birth certificate under RA 9255 and its Implementing Rules and Regulations. Please read my post “What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines.”

The Implementing Rules and Regulations of RA 9255 make it mandatory for the illegitimate child to use the father’s surname if (1) the father acknowledges the child in the birth certificate or (2) issues a public or private instrument acknowledging the child, even if the mother does not give her consent to the use of the father’s surname. My stand is that the mother must give her consent before RA 9255 can be given effect. I have encouraged women who do not wish their children to use the father’s surname to file a petition to nullify the IRR of RA 9255. One good thing that can come out of this breakup between Kris and James is that Kris, with her financial capability to pay for lawyers, can file the necessary petition to nullify the IRR of RA 9255. If the guidelines are nullified, it will benefit not only Kris but a lot of women all over the Philippines.

Family Code provisions on custody

Lozano’s report cited Article 213 of the Family Code which provides that “no child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” Her report stated that, according to the lawyers, Kris is willing to share custody with James. Not being a lawyer, Lozano may have misunderstood the lawyers’ statements; Article 213 of the Family Code will not apply to Kris, James and Baby James.

• During the course of the court hearings, custody will be shared by Kris and James based on their agreement or upon the court’s instruction. Please read my post “How do courts determine which parent has the right of custody of the children in legal separation, annulment or declaration of nullity?”
  
• If Baby James will be considered in the court judgment as illegitimate, however, parental authority (which includes custody) will belong exclusively to Kris under Article 176 of the Family Code. What James will have is visitation right. Please read my post “Visitation rights over illegitimate children”.

Pre-nuptial agreement; separation of properties between Kris and James

Lozano’s report also states that there is a question as to the separation of properties between Kris and Yap. She said that the lawyers did not reveal whether Kris and James had a pre-nuptial agreement. (Actually, the term used by the Family Code is “marriage settlement”.)

This is an interesting legal issue. If the marriage was void from the beginning, did the pre-nuptial agreement (if they had any) have any legal effect at all? If it had no legal effect, should Article 147 of the Family Code be the governing provision in this matter? This article provides that when a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their property relation is governed by the rules of co-ownership. In simpler terms, the wages and salaries, and properties acquired by Kris and James during their relationship belong to their co-ownership. The first two paragraphs of Article 147 state:

When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household.

Note: Please read my post “Family Code of the Philippines: Primer on marriage,” the comments, and my replies to the comments.