CRISTINA OCAMPO-FERRER, PLAINTIFF-APPELLANT, VS. ELDEFONSO G. DEL ROSARIO, JOSEFINO R. ORTIZ, AND THE REGISTER OF DEEDS OF LAS PIÑAS CITY, DEFENDANTS-APPELLEES.
REYES, JR., J.C., J.:
“WHEREFORE, premises considered, the instant complaint is hereby DISMISSED for lack of merit. The defendant’s counterclaims are also dismissed on the same ground. Defendant DEL ROSARIO is ordered to return the Owner’s Duplicate Copy of TCT No. T-165897 to CRISTINA.
SO ORDERED.” (Rollo, p. 87)
The antecedents as culled from the evidentiary records:
Sometime in February 2001, plaintiff-appellant Cristina Ocampo-Ferrer (hereinafter Cristina) obtained a loan in the amount of Php850,000.00 from defendant-appellee Eldefonso G. Del Rosario (hereinafter Del Rosario). Said loan was for the purpose of redeeming her rights, interests and participation over a parcel land situated in Las Piñas City and covered by Transfer Certificate of Title (TCT) No. 30480, which was sold at public auction on November 9, 1999. For value received, she executed a promissory note (Records, Vol. 1, p. 24) binding herself to pay the loan in installments at Php40,000.00 per month, for a period of four (4) years starting on March 20, 2001 until April 20, 2005. As security for the loan, Cristina executed a Real Estate Mortgage (Records, Vol. 1, pp. 21-23) in favor of Del Rosario over a parcel of land owned by her son Alfredo Ocampo Ferrer II, situated in Calauan, Laguna and covered by TCT No. T-165897. Pursuant to said mortgage, she delivered to Del Rosario her son’s owner’s duplicate copy of TCT No. T-165897.
Cristina, however, defaulted in the payment of her loan obligation to Del Rosario. Despite repeated demands to pay, the latest of which was through a letter dated March 28, 2003, she failed and refused to pay her obligation. As a consequence thereof, Del Rosario filed a complaint for sum of money (Records, Vol. 1, pp. 26-31) against her, before the Regional Trial Court of Las Piñas City. The case was docketed as Civil Case No. LP-03-0088.
During the mediation proceedings of Civil Case No. LP-03-0088, Cristina and Del Rosario submitted a Compromise Agreement (Records, Vol. 1, p. 34) dated December 8, 2004, which essentially provided that Cristina shall pay Del Rosario the amount of Php1,200,000.00 on or before June 19, 2005. Further, it provided that upon Del Rosario’s receipt of the full amount of Php1,200,000.00, he shall return the owner’s duplicate copy of TCT No. T-165897.
In an Order (Records, Vol. 1, pp. 36-37) dated December 10, 2004 issued by Branch 275 of the RTC of Las Piñas City, the Compromise Agreement dated December 8, 2004 was approved and adopted as the decision in Civil Case No. LP-03-0088.
On September 8, 2005, Del Rosario filed a Motion for Execution in Civil Case No. LP-03-0088. In an Order dated December 16, 2005, the RTC of Las Piñas City, Branch 275, granted Del Rosario’s motion. Accordingly, a Writ of Execution (Records, Vol. I, pp. 668-669) was issued on December 28, 2005.
On January 4, 2006, defendant-appellee Josefino Ortiz (hereinafter Sheriff Ortiz), Sheriff IV of the RTC of Las Piñas City, Branch 275, issued a Demand/Notice to Pay (Records, Vol. I, p. 670) to Cristina. Said notice was received on January 5, 2006 by Fernando Ferrer II, Cristina’s son.
On January 11, 2006, Sheriff Ortiz issued a Notice of Levy Upon Realty (Records, Vol. I, p. 671) to the Register of Deeds of Las Piñas City, levying upon whatever rights, interests and participation Cristina may have on a parcel of land situated in Pamplona, Las Piñas City which is covered by TCT No. 30480.
In a Notice of Sale on Execution of Real Property (Records, Vol. I, pp. 672-673) dated January 12, 2006, Sheriff Ortiz announced that the public auction sale of the levied property was scheduled on February 20, 2006.
During the scheduled auction sale, Del Rosario came out as the sole and highest bidder and a Certificate of Sale dated February 20, 2006 was issued in his favor. (Records, Vol. I, p. 676) Said certificate of sale was later annotated on February 22, 2006.
On February 22, 2007, Cristina filed a complaint (Records, Vol. I, pp. 2-9) before RTC – Branch 198 of Las Piñas City, seeking the annulment of sheriff’s sale as well as payment of damages. She essentially alleged that Del Rosario and Sheriff Ortiz committed unlawful acts in enforcing the writ of execution in Civil Case No. LP-03-0088.
In their Answer with Affirmative Defenses and Counterclaim (Records, Vol. I, pp. 55-61) filed on March 28, 2007, appellees Del Rosario and Sheriff Ortiz vehemently denied that they have committed unlawful acts against Cristina. As an affirmative defense, they raised that Cristina’s complaint is already barred by prior judgment rendered in Civil Case No. LP-03-0088 and that the judgment based on compromise rendered in said case was never challenged by Cristina. They likewise averred by way of affirmative defense that Branch 198 of the RTC of Las Piñas City has no jurisdiction over the complaint for annulment of sheriff’s sale for being a co-equal court of RTC – Branch 275 thereof.
After trial on the merits, RTC – Branch 198 rendered the challenged decision (Rollo, pp. 80-87) on November 9, 2012. It explained that Cristina failed to discharge the burden of proving that the actions taken by Del Rosario and Sheriff Ortiz in levying upon and selling the property covered by TCT No. 30480 through auction sale on February 20, 2006, were unlawful and illegal.
Cristina’s motion for reconsideration was subsequently denied in an Order dated February 8, 2013.
Hence, this appeal raising the following assignment of errors:
“1. THE COURT A QUO COMMITTED REVERSIBLE ERRORS IN NOT FINDING THAT THE DEFENDANT-APPELLEE SHERIIFF FAILED TO COMPLY STRICTLY WITH THE PROVISIONS OF SECTION 9, RULE 39 OF THE 1997 RULES OF CIVIL PROCEDURE WHEN HE PROCEEDED DIRECTLY WITH THE LEVY AND AUCTION SALE OF THE REAL PROPERTY SUBJECT OF THE LITIGATION[;]
2. IN RELATION TO THE FIRST ASSIGNED ERROR, THE COURT A QUO ALSO ERRED IN NOT HOLDING THAT THE CERTIFICATE OF SALE DATED 20 FEBRUARY 2006 CONCERNING THE PLAINTIFF-APPELLANT’S CO-OWNED PROPERTY COVERED BY TCT NO. 30480 AND THE ANNOTATION THEREON UNDER ENTRY NO. 4757-26 AS NULL AND VOID AND WITHOUT LEGAL FORCE AND EFFECT[;] [AND]
3. THE COURT A QUO COMMITTED REVERSIBLE ERROR IN FINDING THAT PLAINTIFF-APPELLANT FAILED TO ESTABLISH HER CASE BY PREPONDERANCE OF EVIDENCE.” (Rollo, p. 61)
This Court GRANTS the appeal.
The procedure in enforcing a money judgment is found in Section 9, Rule 39 of the 1997 Rules of Civil Procedure. It reads:
“SEC. 9. Execution of judgments for money, how enforced. —
(a) Immediate payment on demand. — The officer shall enforce an execution of a judgment for money by demanding from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the judgment obligee, or any other form of payment acceptable to the latter, the amount of the judgment debt under proper receipt directly to the judgment obligee or his authorized representative if present at the time of payment. The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ.
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(b) Satisfaction by levy. — If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment.
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(c) Garnishment of debts and credits. — The officer may levy on debts due the judgment obligor and other credits, including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or control of third parties. Levy shall be made by serving notice upon the person owing such debts or having in his possession or control such credits to which the judgment obligor is entitled. The garnishment shall cover only such amount as will satisfy the judgment and all lawful fees.
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Based on the foregoing, the duties of a sheriff are: (1) to first make a demand from the obligor for the immediate payment of the full amount stated in the writ of execution and of all lawful fees; (2) to receive payment in the form of cash, certified bank check payable to the obligee, or any other form of payment acceptable to the latter; (3) to levy upon the properties of the obligor, not exempt from execution, if the latter cannot pay all or part of the obligation; (4) give the obligor the opportunity to exercise the option to choose which property may be levied upon; (5) in case the option is not exercised, to first levy on the personal properties of the obligor, including the garnishment of debts due the obligor and other credits, i.e., bank deposits, financial interests, royalties, commissions and other personal properties not capable of manual delivery or in the possession or control of third parties; and (6) to levy on real properties if the personal properties are insufficient to answer for the judgment. (Vicsal Development Corp. vs. dela Cruz-Buendia, 686 SCRA 299, 306-307 [2012])
In the case at bar, it is undisputed that Sheriff Ortiz first made a demand from Cristina for the immediate payment of the full amount due and of all lawful fees, as evidenced by the Demand/Notice to Pay (Records, Vol. I, p. 670) Said notice gave Cristina a period of five (5) days from receipt thereof to comply with the demand. The 5-day period, however, lapsed without any compliance from her.
Since there was no payment made, satisfaction by levy was the next option. Records, however, are bereft of any showing that Sheriff Ortiz observed the prescribed procedure when he levied upon the property covered by TCT No. 30480. He miserably failed to give Cristina the opportunity to exercise the option of immediately choosing which property may be levied upon.
Even assuming arguendo that such option was given to her but she just did not exercise it immediately, or has waived such right due to her absence or for the reason that she cannot be located, still the levy made upon the property covered by TCT No. 30480 is procedurally defective. Section 9(b), Rule 39 of the 1997 Rules of Civil Procedure explicitly provides that if the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment.
Here, Sheriff Ortiz did not first levy on Cristina’s personal properties, if any. Worse, he immediately issued a Notice of Levy Upon Realty (Records, Vol. I, p. 671) dated January 11, 2006 on the property covered by TCT No. 30480. It must be emphasized that the sheriff cannot and should not be the one to determine which property to levy if the judgment obligor cannot immediately pay because it is the judgment obligor who is given the option to choose which property or part thereof may be levied upon to satisfy the judgment. (Sarmiento vs. Mendiola, 638 SCRA 345, 351 [2010])
Evidently, appellee Sheriff Ortiz failed to perform his duty with utmost diligence and fell short of the exacting standards required of his office. The Supreme Court has consistently held that the conduct of every person connected with an office charged with dispensation of justice must not only be characterized by propriety and decorum but, above all else, be beyond suspicion. (D. R. CATV Services Inc. vs. Ramos, 477 SCRA 18, 25 [2005]) Although it is true that the enforcement of a writ of execution is merely a ministerial function of the sheriffs, the sheriff has no discretion on the manner of implementing a writ of execution and the sheriff must strictly abide by the prescribed procedure to avoid liability. (Vicsal Development Corp. vs. dela Cruz-Buendia, supra, p. 307) On a final note, it is well to reiterate the cautionary statement made by the Supreme Court in Atty. Stanley G. Zamora v. Ramon P. Villanueva (560 SCRA 32, 37 [2008]), thus:
“By the nature of their functions, sheriffs must conduct themselves with propriety and decorum, to be above suspicion. Sheriffs are court officers and, like everyone else in the judiciary, are called upon to discharge their sworn duties with great care and diligence. They cannot afford to err in serving court writs and processes and in implementing court orders lest they undermine the integrity of their office and the efficient administration of justice.“
In fine, this Court holds that the levy made upon the property covered by TCT No. 30480 was procedurally defective. Perforce, the Certificate of Sale dated February 20, 2006 issued in favor of Del Rosario as well as the annotation thereof on TCT No. 30480 under Entry No. 4757-26 are null and void. The Officer’s Deed of Final Sale dated February 23, 2007 is likewise null and void.
WHEREFORE, premises considered, instant appeal is GRANTED. The appealed decision dated November 9, 2012 of the Regional Trial Court (RTC), Branch 198 of Las Piñas City in Civil Case No. LP-07-0037 dismissing the complaint filed by plaintiff-appellant Cristina Ocampo-Ferrer, is REVERSED AND SET ASIDE. The Certificate of Sale dated February 20, 2006 issued in favor of defendant-appellee Eldefonso G. Del Rosario as well as the annotation thereof on TCT No. 30480 under Entry No. 4757-26 and the Officer’s Deed of Final Sale dated February 23, 2007 are declared NULL AND VOID.
Plaintiff-appellant Cristina Ocampo-Ferrer is hereby ORDERED TO PAY the judgment award based on their compromise agreement dated December 8, 2004 in Civil Case No. LP-03-0088, within ten (10) days from notice.
SO ORDERED.
Lopez and Inting, JJ., concur.