!

Republic of the Philippines

HUMAN SETTLEMENTS ADJUDICATION COMMISSION
Regional Adjudication Branch VII
Unit 704, 7/F Club Ultirna Tower II
Osmefta Blvd., Cebu City

JEZAH MAE 0. SULLA,

Complainant-Appellant,
RVII-REM-210406-0017

-versus-

PRIMA CASA LAND AND

HOUSES INC.,
Respondent-Appellee.
x- - - - - - - - - - - - - - - - - - - - - - - - -/

NOTICE OF APPEAL
(COMPLAINANT-APPELLANT)

COMES NOW COMPLAINANT-APPELLANT, by counsel,

unto this Honorable Commission most respectfully files this
Notice of Appeal together with the Appeal Memorandum from
the Decision of Regional Adjudicator dated 25 November 2021
rendered in the above-entitled case and received by
Complainant-Appellant through counsel on February 7, 2022
via registered mail and appeals the same for serious errors of fact
and law which, if not corrected, would cause grave or irreparable
damage or injury.

Respectfully submitted.
22 February 2022. Minglanilla, Cebu (for Cebu City).
/

C unse
r Co pl · ant-Appellant
of neys No. 62768
.,..._,llct'.11J'

IBP No. 20 6; 02-08-2022 (CY 2022) - Cebu Prov.

PTR No. 908506; 02-08-2022 (CY 2022) - Cebu Prov.
MCLE Compliance No. VI-0023193 until April 14, 2022
Unit 205, JE Centre Bldg., N. Bacalso Ave.
Linao, Minglanilla, Cebu 6046
Email address: pla_u s cla w@yah
oo.com
Contact No. 09171672988/ 099982128860

1 ·: -
 REPUBLIC OF THE PHILIPPINES )
MINGLANILLA, CEBU ) S.S.

AFFIDAVIT OF SERVICE

I, JEZAH MAE 0. SULLA, of legal age, single, Filipino citizen

with postal address at Tangke 2, City of Naga, Cebu, after having been
duly sworn to in accordance with law, hereby depose and state:

1. That on February 22, 2022, a copy of the appeal memorandum was

served to the Respondent-Appellee at the following address:

ATTY. PRINCESS CHRISTINE C. CARLOBOS

Counsel for Respondent-Appellee
Prima Casa Land and Houses Inc.
ROSERO RED MARQUINO MALANDAC AND
ANINANG LAW OFFICES
Camella Cebu, A.S. Fortuna St.
Mandaue City, Cebu 6014

n 2. That the service was done via registered mail as evidence by th e

registry return receipt herein attached as follows:
0

Registered Receipt No. RE 432 "JG,!, 7'85 Z2-

Post Office: MJHG,LM,111..LA ,
Date: Fcl'J. 2j . .2.t,£2.

3. That I am executing this affidavit in compliance with Sec. 1lO(h)

Rule 24 of the Rules of Procedure of the Human Settlement
Adjudication Commission.

n IN WITNESS WHEREOF, I have hereunto affixed my signature on

this 22nd day of February 2022 at Minglanilla, Cebu, Philippines.

. ' UBSCRIBED AND SWORN to before me this _ day of

2 l=F 2022 at Minglanilla, Cebu, Philippines, affiant personally
appeared and exhibited her competent proof of identity by wayof
Philippine Passport No. P5580174A issued on 10 January 2018 at Cebu,
Philippines and expires on 9 January 2028.

WITNESS MY HAND AND

SEAL.

Doc. No. - W..,.._ Nota Publ for Naga City

and In tho Mu lcipallty of Mlnglantlla, Cebu
Page No. _,. - NC No. 2017-09 J; Untll 12-31-22; Roll No. 66973
PTR # 899383 dated OJ -to 22 Ce-bu Province
Book No. _-'ll l- IBP 111B?SJ3 daiecl r 1 H> 72 Cebu City
Unit 12, 2F,RBlt U11.11:, 'iouth Road
Series of 2022. Poblaclon Ward IV, Mmll-1.. nllla, Cebu. _

182
:., - ...

Republic of the Philippines

HUMAN SETTLEMENTS ADJUDICATION COMMISSION
Regional Adjudication Branch VII
Unit 704, 7/F Club Ultima Tower II
Osmeiia Blvd., Cebu City

JEZAH MAE O. SULLA,

Complainant-Appellant,
RVII-REM-210406-0017

-versus-

PRIMA CASA LAND AND

HOUSES INC.,
Respondent-Appellee.
n x- - - - - - - - - - - - - - - - - - - - - - - - -/

APPEAL MEMORANDUM
(Complainant-Appellant)

COMPLAINANT-APPELLANT, through undersigned counsel,

unto this Honorable Commission, by way of Appeal, most
respectfully states that:

PREFATORY

The subject matter of this Appeal is the Decision rendered

n by the Honorable Regional Adjudicator Branch VII dated 25
November 2021 dismissing the complaint for dearth of merit.

GROUNDS

With all due respect to the Honorable Regional Adjudicator

a quo, the herein Appellant respectfully submits that there is
serious errors of fact and law in the assailed decision which, if not
corrected, would cause grave or irreparable damage or injury to
the appellant in dismissing her complaint.

TIMELINESS

The Complainant-Appellant received the Decision of the

Honorable Regional Adjudicator on February 7, 2022 via registered

1
181
.. - ·- .,

mail. Pursuant to Sec. 109, Rule 24 of the of the Rules of

Procedure!, an appeal may be taken from the decision of the
Regional Adjudicator on any legal ground within fifteen (15)
calendar days from receipt of the assailed decision. Therefore, the
Complainant-Appellant has until February 22, 2022 to perfect her
appeal. Hence, this appeal is timely filed.

ADOPTION CLAUSE

The Complainant-Appellant hereby adopts into this Appeal

Memorandum, by incorporation and reference, all the allegations
and arguments stated in the main Position Paper filed with the
Honorable Regional Adjudicator a quo on July 22, 2021 for the
record and convenience.

n
STATEMENT OF FACTS AND INCIDENTS

1. On April 6, 2021, Complainant-appellant filed a verified complaint

before the Regional Adjudication Branch VII for refund and
damages.

2. Mandatory conferences were held on 8 June 2021, 22 June

2021, and 7 July 2021. However, the parties failed to arrive at
an amicable settlement, hence, they were ordered to
simultaneously file their respective position paper on July 22,
2021.

3. On November 25, 2021, the Honorable Regional Adjudicator laid

down the decision as follows:

"WHEREFORE, premises considered, this Office hereby

renders judgment dismissing this case with respective
litigation costs against the parties.

The Respondent is hereby ordered to pay an

administrative fine in the amount of ONE THOUSAND
PESOS (P1,000.00) per saleable lots for violation of
Section 5 of Presidential Decree No. 957 in accordance
with Section 38 of the same law, without prejudice to
further sanctions as may be determined and criminal
charges as may be filed in the regular courts for selling
subdivision units/lots without the requisite License to
Sell, in the event that no administrative fine has been
imposed by the Department of Human Settlements and
Urban Developments against the Respondent for such
violation."

1En Banc Resolution No. 8, Series of

2021
2
1 80
... .. J .-

4. A copy of the decision was received by the Complainant-

Appellant on February 7, 2022.

5. Unsatisfied, the herein Complainant-Appellant filed the instant

appeal seeking for the reversal of the assailed decision.

ISSUES/ASSIGNMENT OF ERRORS

i. THAT THE REGIONAL ADJUDICATOR A QUO ERRED IN

HOLDING THAT NO SCINTILLA OF EVIDENCE HAS BEEN
PRESENTED TO PROVE THE FRAUD AND
MISREPRESENTATION FROM THE RESPONDENT.

ii. THAT THE HONORABLE REGIONAL ADJUDICATOR ERRED IN

DECLARING THAT THERE WAS NO BASIS TO WITHDRAW
FROM THE TRANSACTION AS SHE WAS THE ONE WHO WAS
NOT ABLE TO COMPLY WITH THE CONTRACTUAL
n OBLIGATION.

iii. THAT THE HONORABLE REGIONAL ADJUDICATOR ERRED IN

UPHOLDING THE VALIDITY OF THE RESERVATION
AGREEMENT WITHOUT THE EXPRESS APPROVAL OF THE
DEVELOPER.

DISCUSSION /ARGUMENTS

1. The Honorable Regional Adjudicator may have overlooked the

fact that the selling of the subdivision unit by the respondent
without the required License to Sell constitutes fraud by falsely
pretending that they have the proper license to sell the subdivision
lot at the time of the transaction.

2. In the judicial affidavit of the appellant, she stated that she

complied in good faith what the respondent-appellee requires
from her, including the submission of the special power of
attorney from her mother, Sandra Obeso, for purposes of the
assignment, but she never heard from the respondent after she
had submitted all that she was required from her.

3. There was a deliberate intention on the part of the respondent to

delay the process considering the licenses2 from DHSUD3 were
issued only on March 24, 2017 and April 17, 2017 per
certification4, the period when the equity had been fully paid.

2 Certificate of Registration Nos. 27682 & 27698, and License to Sell No.
31146
3 Department of Human Settlements and Urban Developments.

4 Please see Annex "G".

3

175
\ . , '- . ,-

4. The equity capital and estimated date of tum-over were not a

product of the agent's imagination but were based on the sample
payment schedule attached to the Reservation Agreement which
was thoroughly explained to the complainant-appellant. She
faithfully relied on such presentation as all the other buyers
would do leading her to decide in choosing the respondent.

5. Even granting all the requirements were submitted at that time,

still, the Developer can't possibly deliver the unit and fulfill its
obligation at that period, and the unit was not even constructed
within a year from the issuance of licenses.

6. While it is true that the Reservation Agreement states that any

representation made by the agent shall not be binding on the
Developer, however, the agent whose employment is with the
developer only adheres to the instructions of the Developer as

n reduced in writing.
7. If at all costs, the representation of the agent who facilitated the
sale does not bind the developer, then the reservation agreement
is therefore not controlling because it is expressly stated in the
Reservation Agreement that the reservation is not valid and
binding unless approved by the Developer and shall be subject to
full payment of the Reservation Fee and submission of all the
required documents5.

8. It is absurd not to hold the Developer liable for any

representation made by the agent, but declare the contract as
binding when the Developer did not conform with the
Agreement but only the agent.

9. While it is true that Complainant-appellant executed and signed

the Reservation Agreement containing the terms and conditions
for the reservation or conveyance of the subject unit, however,
the reservation is not valid at all lacking approval of the
Developer. Apparently, the developer did not signify its
signature in the Agreem en t 6 • Hence, not binding.

10. While complainant-appellant agrees on the pronouncement

made in the case of Moldex Realty, Inc. versus Flora A. Saberon
as discussed in the Decision7, however, obligations arising from
the contract are binding only if not contrary to law, morals,
good

5
Please refer to paragraph 21of the Reservation Agreement (Annex"A").
6 Please see page 3 of Annex "A"
7 Please see page 8 of the Decision.

r
4
178
., '

customs, public order, or public policy as inferred in Romeo G.

Roxas, et al. v. Antonio de Zuzuarregui, et al.8

11. The non-binding provision of the Agreement is contrary to law

and the sound principle of agency and, even granting it is not,
the Agreement is still invalid absent conformity of the developer.

12. In the absence of agreement, there is no right for the appellee to

demand payment from the buyer and the appellant's tender of
payment therefore is an honest mistake on the belief that she has
the obligation to do so. Hence, this harks back to the basic and
ancient principle of the civil law that no person shall unjustly
enrich himself at the expense of another as outlined in Article
21549 of the Civil Code of the Philippines.

13. Therefore, it is only wise and just for the appellee to return and
refund all the payments made by the appellant.

PRAYER

WHEREFORE, in view of the foregoing premises, it is

respectfully prayed of this Honorable Commission that the
DECISION of the Honorable Regional Adjudicator dated 25
November 2021 be REVERSED and SET ASIDE, and that all
claims prayed for by the complainant-appellant in her Position
Paper be dated 22 July 2021 be GRANTED.

Other reliefs that are just and reasonable under the premises
are likewise prayed for.

RESPECTFULLY SUBMITTED.
22°d day of February 2022. Minglanilla, Cebu (for Cebu City),
Philippines. ,--

AD
laina -Appellant
eys . 62768
36- _,,t!;?,g-,._.J,..,,;; 2 (CY 2022) - Cebu Prov.
PTR No. 908 ; 02-08-2022 (CY 2022) - Cebu Prov.
MCLE Compliance No. VI-0023193 until April 14, 2022
Unit 205, JE Centre Bldg., N. Bacalso Ave.
Linao, Minglanilla, Cebu 6046
Email address: pla_usclaw@yahoo.com

8 G.R. Nos.152072 and 152104, January 31, 2006.

9 Art2154. lfsomething is received when there is no right to demand it, and it was unduly
delivered through mistake, the obligation to return it arises.
 REPUBLIC OF THE PHILIPPINES )
MINGLANILLA, CEBU ) S.S.

VERIFICATION

THAT I, JEZAH MAE 0. SULLA, of legal age, single,

Filipino citizen with postal address at Tangke 2, City of Naga,
Cebu, after having been duly sworn to in accordance with law,
hereby depose and state:

1. That I am the Complainant-Appellant in the above-entitled

case and who caused the preparation of the foregoing appeal
memorandum.

2. That I have read the same and the allegations therein are true
and correct, based on my own personal knowledge or
authentic documents.

n 3. That the pleading is not filed to harass, cause unnecessary

delay, or needlessly increase the cost of litigation.

4. That the factual allegations therein have evidentiary support

or, if specifically so identified, will likewise have evidentiary
support after a reasonable opportunity for discovery.

IN WITNESS WHEREOF, I have hereunto affixed my

signature on this 21st dayof February 2022 at Minglanilla, Cebu,
Philippines.

SUBSCRIBED AND SWORN to before me this _ day of

fl flEB 2022 at Minglanilla, Cebu, Philippines, affiant personally
appeared and exhibited her competent proof of identity by way of
Philippine Passport No. P5580174A issued on 10 January 2018 at
Cebu, Philippines and expires on 9 January 2028.

WITNESS MY HAND AND SEAL.

Doc. No.-_ :o;:J

ATIY. HOP'EJ'.I
Page No. _"'.\- Not.I Pu I for Nap City
and In tho M nlclp ty of Mlnglanllla, Cebu
Book No. --\JI NC No. 2O17-o9 ; U 112-31-22: Roll No, 66973
PTR,i 899383 dated 01-10-22 Cebu Province

Series of 2022.
IDP# 187518 dated 01-18-22 C11bu City
Unit 12, ZF. RBR Bldg.• South Road
Poblaclon Ward IV, Mlnglanllla, Cebu.

'"' ·•·17C=. 6
,.._

'