Republic of the Philippines MUNICIPAL TRIAL COURT DIGOS CITY Dennis dela Cruz Petitioner, ---versus---Myla Doe Represented

by her attorney-infact Atty. Charlotte Gallego Respondent, X---------------------------------------------------X For: Ejectment

MEMORANDUM COME NOW RESPONDENT, through the undersigned counsel, unto this Honorable Court most respectfully submit this Memorandum in the above-entitled case and aver that: STATEMENT OF FACTS 1. Myla Doe entered into an oral contract of lease with Dennis dela Cruz for the latters apartment located at Tres de Mayo, Digos City. 2. In line with the agreement, Myla Doe approved to pay ten thousand (10,000) Pesos per month as rental fee. 3. From the day Myla Doe started to lease the said apartment, she never defaulted in the payment of the monthly rentals , and it was only until December of last year when the respondent failed to pay Denis dela Cruz for excusable reasons, which the latter expressly gave his tolerance. 4. Due to the foregoing failure to pay monthly rentals for three months, Gabriel dela Cruz, the son of herein petitioner Dennis dela Cruz prepared a demand letter falsely alleging that his father had authorized him to collect the unpaid rentals. 5. Thereafter, the respondent paid to Gabriel dela Cruz the total amount of thirty thousand pesos (P30, 000) equivalent to three-month rentals believing in good faith that Gabriel, son of the owner of the apartment, was duly given the authority to collect said payment. 6. The next day, Dennis dela Cruz went to Mylas apartment and demanded payment. 7. Dennis dela Cruz threatened to oust Myla Doe from the apartment for failure to pay rentals.

ISSUES WHETHER OR NOT this unlawful detainer action should be dismissed and whether respondent is entitled to restitution of payment, it being clear that full payment was made in good faith. WHETHER OR NOT Article 1673 of the New Civil Code was suspended by The Rent Control Law or R.A. 9653. ARGUMENTS The lessor cannot judicially eject the lessee without the causes expressly so provided by law. The Plaintiff cannot invoke Article 1673 of the New Civil Code for it has been suspended by the Rent Control Law, and a lease on a month-to-month basis is under Art. 1687 of the same code. DISCUSSION WHETHER OR NOT this unlawful detainer action should be dismissed and whether respondent is entitled to restitution of payment, it being clear that full payment was made in good faith. In the case of Cabrera v. Getaruela, G.R. No. 164213, April 21, 2009, 586 SCRA 129, 136-137, the Supreme Court rules that a complaint sufficiently alleges a cause of action for unlawful detainer if it recites the following: (1) initially, possession of property by the defendant was by contract with or by tolerance of the plaintiff; (2) eventually, such possession became illegal upon notice by plaintiff to defendant of the termination of the latters right of possession; (3) thereafter, the defendant remained in possession of the property and deprived the plaintiff of the enjoyment thereof; and (4) within one year from the last demand on defendant to vacate the property, the plaintiff instituted the complaint for ejectment. In our present case, the possession of the respondent is lawful and even her refusal to vacate the said property is also lawful pursuant to the delivery of full payment which will extinguish her obligation. There is no merit to the plaintiffs contention that the respondent did not fulfill her contractual obligations thus terminating their legal right to hold the property. There is no denying that the respondent had paid her obligation. The only question now is whether or not Gabriel, the son of Dennis and the one who received the respondents payment, is entitled to it. The opposing counsel is right that in order for an obligation to pay be extinguished, payment shall be made to the person in whose favor the obligation has been constituted, or his successor in interest, or any person authorized to receive it, Article 1240 of the New Civil Code. However, one of the exemptions of this article is Art. 1242, which states that Payment made in good faith to any person in possession of the credit shall release the debtor. We humbly submit to this Honorable Court that the payments made to Gabriel were payments made in good faith to a person in possession of the credit, in consonance with Article 1242 of the

Civil Code. It is not contemplated in our culture that a son will unjustly enrich himself at the expense of his father, hence the respondent should not be held liable for failing to deliver mistrust upon the simulated demand letter. Further, Article 2154 clearly states that If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises. WHETHER OR NOT Article 1673 of the New Civil Code was suspended by The Rent Control Law or R.A. 9653. YES. This issue was settled in the case of De Vera vs. Court of Appeals, G.R. No. 110297. The issue in this case is whether the oral contract of lease between Myla and Denis was on a month-tomonth basis which is terminated at the end of every month. We hold that it is. It was ruled in a number of cases that a lease on a month-to-month basis is, under Art. 1687, a lease with a definite period, upon the expiration of which upon demand made by the lessor on the lessee to vacate, the ejectment of the lessee may be ordered and not under Article 1673. Art. 1687 of the Civil Code provides: If the period for the lease has not been fixed, it is understood to be from year to year, if the rent agreed upon is annual; from month to month, if it is monthly; from week to week, if the rent is weekly; and from day to day, if the rent is to be paid daily. However, even though a monthly rent is paid, and no period for the lease has been set, the Courts may fix a longer term for the lease after the lessee has occupied the premises for over one year. If the rent is weekly, the Courts may likewise determine a longer period after the lessee has been in possession for over six months. In case of daily rent, the courts may also fix a longer period after the lessee has stayed in the place for over one month. Since the plaintiff cannot invoke said article, he cannot judicially eject the lessee for any of the causes provided under such provision, to wit: (1) When the period agreed upon, or that which is fixed for the duration of leases under articles 1682 and 1687, has expired; (2) Lack of payment of the price stipulated; (3) Violation of any of the conditions agreed upon in the contract; (4) When the lessee devotes the thing leased to any use or service not stipulated which causes the deterioration thereof; or if he does not observe the requirement in No. 2 of article 1657, as regards the use thereof.

CONCLUSION

WHEREFORE, in consideration of all the foregoing, the respondent respectfully prays that the Honorable Court dismiss the ejectment case for unlawful detainer. It is further prayed that restitution be made in favor of the respondent.

Complaint

Mr. Dennis, plaintiff Civil Case No. 2 Accompanied by his Attorney in fact, for:Unlawful Detainer Atty. Kim Hasier Musa -versusMs. Myla, Defendant x-----------------------------------------x COMPLAINT COMES NOW, the plaintiff together with the undersigned counsel to this most honorable court, MOST RESPECTFULLY STATES THAT; 1. The Plaintiff is of legal age, married and a resident of Tres de Mayo, Digos City, Philippines. The Defendant is likewise of legal age, and temporary residing at Tres de Mayo, Digos City. 2. The Plaintiff is the owner of an apartment unit located at Tres de Mayo, Digos City, Philippines. 3. The Defendant is the lessee of the apartment unit that is owned by the Plaintiff. 4. The Plaintiff and the Defendant came up with an agreement of Lease which stipulated an amount of P 10,000.00 as rental for the unit to be paid monthly which they both agreed upon. 5. The defendant after benefitting and enjoying the said apartment failed to pay the rentals for three (3) consecutive months. 6. The plaintiff confronted the defendant about it but the defendant claimed that she has paid the rentals to the plaintiffs son, Gabriel, who devised a demand letter falsely alleging that Dennis, the complainant has authorized for him to collect the unpaid rentals. 7. The plaintiff demanded payment from the defendant the next day. 8. By reason of failure of the defendant to pay the unpaid rentals, the plaintiff was compelled to file this complaint and to eject respondent on the following grounds: A. Under Art. 1673 of the Civil Code, the lessor may judicially eject the lessee for any of the following causes: (1) When the period agreed upon, or that which is fixed for the duration of leases under articles 1682 and 1687, has expired; (2) Lack of payment of the price stipulated;

(3) Violation of any of the conditions agreed upon in the contract; (4) When the lessee devotes the thing leased to any use or service not stipulated which causes the deterioration thereof; or if he does not observe the requirement in No. 2 of article 1657, as regards the use thereof. B. The Rent Control Law or R.A. 9653 provides: Section 9. Grounds for Judicial Ejectment. - Ejectment shall be allowed on the following grounds: .... (b) Arrears in payment of rent for a total of three (3) months: Provided, That in case of refusal by the lessor to accept payment of the rental agreed upon, the lessee may either deposit, by way of consignation, the amount in court, or with the city or municipal treasurer, as the case may be, or in a bank in the name of and with notice to the lessor, within one month after the refusal of the lessor to accept payment. The lessee shall thereafter deposit the rental within ten days of every current month. Failure to deposit rentals for three months shall constitute a ground for ejectment. If an ejectment case is already pending, the court upon proper motion may order the lessee or any person or persons claiming under him to immediately vacate the leased premises without prejudice to the continuation of the ejectment proceedings. At any time, the lessor may, upon authority of the court, withdraw the rentals deposited. The lessor, upon authority of the court in case of consignation and upon joint affidavit by him and the lessee to be submitted to the city or municipal treasurer and to the bank where deposit was made, shall be allowed to withdraw the deposits C. Article 1240 of the New Civil Code which provides that Payment shall be made in whose favor has been constituted, or his successor in interest, or any person authorized to receive it. As provided for in the above-stated facts, the payment was obviously made not in favor of Dennis, the complainant, but to his son who, under the law, is not duly authorized to receive such payment PRAYER WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that judgement be rendered in favor of the plaintiff and that after judgement; a. The defendant shall vacate the apartment unit owned by the plaintiff. b. The defendant shall be ordered to pay P 30,000.00 for the unpaid rentals due to the complainant. c. The payment of the plaintiffs the cost of the suit. Such other reliefs and remedies under the premises are likewise prayed for. Digos City, Davao del Sur, Philippines, March 11, 2013 Kim Hasier Musa Counsel for the Plaintiff

Pleading

Republic of the Philippines Eleventh Judicial Region MUNICIPAL TRIAL COURT Digos City MS. MYLA

Defendant,

Civil Case No. 2 FOR: UNLAWFUL DETAINER

versus MR. DENNIS Plaintiff. x------------------------------------x ANSWER WITH COUNTERCLAIM

COMES NOW Defendant Myla, by counsel and unto this honourable court most respectfully states and avers that: 1. Paragraph 3 and 4 are admitted; 2. Defendant denies the allegations in paragraph 5 of the Complaint insofar as her payment made to the plaintiffs son is concerned; 3. The defendant admits the content of the paragraph 6 that she has paid the rentals to the plaintiffs son, Gabriel who presented a demand letter for the defendant to compel her to pay the rentals applying the plain- view doctrine; 4. Pursuant to Art. 1242 of the Civil Code which provides: that payment made in good faith to any person in possession of the credit shall release the debtor, ergo, the payment made by the defendant to the son of herein plaintiff is in good faith;

5. Paragraph 7 is admitted that the plaintiff demanded payment from the defendant the next day; 6. Plaintiff cannot invoke the provisions under Art. 1673 of the New Civil Code, defendant specifically denies that lack of payment when she had made payment by good faith to the plaintiffs son, she also particularly denies allegation that she had violated any of the stipulated agreement in the contract; 7. Furthermore, plaintiff cannot invoke the Rent Control Law or R.A. 9653 since there was never a refusal on the part of the lessor to accept the said three-month rent by the lessee, the concept of consignation cannot be applied in the case at bar, for in the said concept, there should be an act of depositing the thing due with the court or judicial authorities whenever the creditor cannot accept or refuses to accept payment; 8. Defendant believed in good faith that the plaintiffs son, Gabriel has the authority to accept payment of the rentals because of the demand letter herein affixed as annex A; 9. Finally, Art. 23 of the New Civil Code states that: even when in an act or event causing damage to another property was not due to the fault or negligence, the latter shall be liable for indemnity if through the act or event he was benefited. No person can claim what is not validly or legally his or hers. He or she should not unduly profit on something which does meritoriously belong to him or her.(sumpayi ninyo) bleeh :p

PRAYER WHEREFORE, premises considered, Defendant prays that in judgment, this Honorable Court issue an Order directing the plaintiff to pay Defendant P 50,000.00 for moral damages, cost of litigation and other just and equitable reliefs for physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury.

Digos City, Davao del Sur, Philippines, March 14, 2013. MYLA Defendant L09-69-99837 Assisted by: ATTY. EUNIECEE LYNIEDEE G. SANCHEZ a.k.a top 1 sa first year

For those looking for a simple Affidavit of Loss for business documents such as Permit or any other business documentation issued for your company, the sample Affidavit form below may help.

REPUBLIC OF THE PHILIPPINES CITY OF/MUN. OF __________

) )) S.S.

AFFIDAVIT OF LOSS

I, ____(insert your name here)__, Filipino, of legal age, married/single and with residence at (insert your business address here), after having been duly sworn in accordance with law, hereby depose and state THAT:

1. I am the (insert your position) of (insert your company/corporations name here), a corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines; 2. That being registered with the BIR/Office of/etc., the (Company Corporation) has been issued a (insert kind of document lost here) ; name or

3. That sometime in (date when permit/official document was lost), the original copy of the said (name of Permit/Official Document) could not be found and that despite diligent search and efforts, the same could no longer be found, such that I believe it is now lost beyond recovery; 4. As such, I am executing this Affidavit of Loss to attest to the truth of the foregoing and for whatever legal purposes that this may serve.

IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of ________, 20__ at _____________, Philippines.

Name of Affiant (signature above written name AFFIANT

REPUBLIC OF THE PHILIPPINES) CITY OF __________ ) ) S.S

SUBSCRIBED AND SWORN TO before me this ____ day of (month), 20___ at(City/Municipality), affiant exhibiting to me his valid government-issued identification no. _______________ issued at _________________ and valid until ______________.

Notary Public Until 31 December 20___ PTR No. __________ Issued at: __________ Issued on: __________ TIN No. ___________ Doc. No. _______ Page No. _______ Book No. _______ Series of ________