Republic of the Philippines

SUPREME COURT
8th Judicial Region
REGIONAL TRIAL COURT
Branch 45
Balyuan Building., Balyuan Grounds
Magsaysay Blvd., Tacloban City

TERESITA B. PACANAN, et. al. Civil Case No. R-TAC-20-

Plaintiffs, 00409-
SC

For: Partition

--versus-

ALEX B. BALINGASA
Defendant.

X--------------------------------------------X
ANSWER WITH AFFIRMATIVE DEFENSES

Defendant, by the undersigned counsel before this Honorable Court

most respectfully alleges that;

1. That defendant partially admits paragraph 1 of this complaint in so far

as the personal circumstances of the plaintiffs are concerned but
denies that their residence is at 222 Avenida Veteranos St., Tacloban
City. The truth is that Teresita B. Pacanan is a resident of Baybay
City, Leyte, Susana B. Balingasa is a resident of V&G Subdivision,
Tacloban City, Yvonne B. De La Sierra is a resident of Diit, Tacloban
City, Dorita Daisy B. Pingul is a resident of Dublin, Ireland, Lorna B.
Miller is a resident of Texas, USA Gerry B. Balingasa is residing in
Mexico. Annex “B” is admitted as to its existence but denied as to its
authenticity and due execution;

2. That defendant admits paragraph 2 of this complaint;

3. That defendant denies paragraph 3 of this complaint. Only the

defendant has the legal capacity to sue since herein plaintiffs
 representative is not properly authorized by all of the plaintiffs having
a Special Power of Attorney which is defective;

4. That defendant denies paragraph 4 of this complaint. The late Spouses

Estelita and Diogracias Balingasa have 8 children, herein plaintiffs,
defendant and one Eduardo Balingasa who is already deceased having
died sometime in October 2018. Defendant however admits that the
property of their deceased parents is only co-owned by the 7 siblings
since Eduardo died without issue. Copy of Certificate of Live Birth
and Certificate of Death of Eduardo Balingasa is hereto attached and
marked as Annexes “A” and “B” respectively;

5. That defendant denies paragraph 5 of this complaint. The parcel of

land left by their deceased parents only has a total area of 88 square
meters. It is the residential building erected thereon which has a floor
area of 134 sq. mts. Partition is no longer feasible since if the 88
sq.mts. property would be divided into 7 equal parts, each of them
would only have an area of 12.5 sq.mts. each, which is very
impossible to have a residential or commercial building erected
thereon. It is also impossible to have a single residential building be
divided into 7 equal parts. Copy of Transfer Certificate of Title and
Tax Declarations for both the land and residential building are hereto
attached and marked as Annexes “C”, “D” and “E” respectively;

6. That defendant admits paragraph 6 of the complaint but further

qualifies that his refusal was due to the impossibility of partition. His
siblings were not amenable to his proposal that the properties be sold
and that the proceeds be divided among them equally;

7. That defendant denies paragraph 7 of this complaint, he has not

attended any of the mediation proceedings since he has not received
any summons to attend the same;

8. That defendant denies paragraph 8 of the complaint. To reiterate, his

refusal was due to the impossibility of partition;

9. That Paragraph 9 of the complaint is denied for lack of knowledge and

information sufficient to form a belief as to the truth or falsity of the
said allegation;

10. That Paragraph 10 of the complaint is denied for lack of knowledge

and information sufficient to form a belief as to the truth or falsity of
the said allegation;
 AFFIRMATIVE DEFENSES

LACK OF JURISDICTION DUE TO IMPROPER SERVICE OF

SUMMONS

11. That the Summons was just discovered by the defendant being placed
in front of his house on January 2, 2020, thus, was not personally
received by him and therefore, there was improper service of
summons and jurisdiction over the person of the Defendant was not
acquired by the Honorable Court. Copy of summons without the
signature of defendant is hereto attached marked as Annex “F”;
The 1997 Revised Rules of Court provides:

“RULE 14
Summons

Section 6. Service in person on defendant. — Whenever practicable,

the summons shall be served by handling a copy thereof to the
defendant in person, or, if he refuses to receive and sign for it, by
tendering it to him.”

“Failure to serve summons means that the court did not acquire
jurisdiction over the person of the defendant. Absent proper service of
summons, the court cannot acquire jurisdiction over the defendant
unless there is voluntary appearance”.(PEOPLE'S GENERAL INSURANCE
CORPORATION, PETITIONER, VS. EDGARDO GUANSING AND EDUARDO LIZASO,
RESPONDENTS. G.R. No. 204759, November 14, 2018)

IMPOSSIBILITY OF PARTITION

12. The parcel of land left by their deceased parents only has a total area
of 88 square meters. It is the residential building which has a floor
area of 134 sq. mts. Partition is no longer feasible since if the 88
sq.mts. property would be divided into 7 equal parts, each of them
would only have an area of 12.5 sq.mts. each which is very impossible
to have a residential or commercial building constructed thereon,
more so that their residential building is already erected on it. It is also
impossible to have a single residential building be divided into 7 equal
parts.

The Civil Code provides that:

 “Art.1086. Should a thing be indivisible, or would much be impaired
by its being divided, it may be adjudicated to one of the heirs,
provided he shall pay the others the excess in cash.
Nevertheless, if any of the heirs should demand that the thing be sold
at public auction and that strangers be allowed to bid, this must be
done.”

13. Defendant’s refusal is due to the impossibility of partition. His

siblings were not amenable to his proposal that the properties be sold
and that the proceeds be divided among them equally which is also
tantamount to partition;

The Civil Code further provides that:

“Art.1082. Every act which is intended to put an end to indivision
among co-heirs and legatees or devisees is deemed to be a partition,
although it should purport to be a sale, an exchange, a compromise,
or any other transaction.”

LACK OF AUTHORITY OF PLAINTIFF REPRESENTATIVE/NO LEGAL

CAPACITY TO SUE

14. That Lorna B. Miller who is a resident of the United States of

America and Gerry B. Balingasa who is residing in Mexico have not
gone home to the Philippines for quite a long time already and would
be very impossible to have personally appeared before the Notary
Public and executed a Special Power of Attorney on December 17,
2019 authorizing Teresita B. Pacanan to represent them in this case,
hence, Teresita Pacanan has no authority to represent her 2 siblings in
this case. Copy of the Affidavits of Noel M. Macariola to prove that
they have not gone home to the Philippines in 2019 are hereto
attached and marked as Annexes “G” and “H”;

“Generally, a notarized document carries the evidentiary weight

conferred upon it with respect to its due execution, and documents
acknowledged before a notary public have in their favor the
presumption of regularity which may only be rebutted by clear and
 convincing evidence. However, the presumptions that attach to
notarized documents can be affirmed only so long as it is beyond
dispute that the notarization was regular. A defective notarization
will strip the document of its public character and reduce it to a
private document.” (RURAL BANK OF CABADBARAN, INC vs. JORGITA A.
MELECIO-YAP  G.R. No. 178451               July 30, 2014)

PRAYER
Wherefore, premises considered, it is most respectfully prayed that this
Honorable Court issue and order:
(1.) The complaint dismissed in favor of the defendant for lack of
jurisdiction and merit;
(2.) The plaintiff to refrain from doing acts violative of the right of the
defendant as co-owner to continue in peaceful possession of the property;

Other reliefs as are just and equitable under the circumstances are
likewise prayed for.

January 12, 2021

ATTY. CHRISTOPHER RYAN P. ROSAL

Counsel for the Defendant
Roll No. 67012
PTR No. 8102732 (January 5, 2021) Tacloban City
IBP No. 148940 (January 6, 2021), Leyte Chapter
MCLE No. VI-0011171
Kings Bldg., Paterno St., Tacloban City

Cc:

ATTY. GRANNEY R. VARONA

43 Juan Luna St., Tacloban City
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