Republic of the Philippines

SUPREME COURT
8th Judicial Region
REGIONAL TRIAL COURT
Branch _
Bulwagan ng Katarungan, Magsaysay Blvd., Tacloban City

PETER CRUZ,
Plaintiff FOR: Collection of Sum of Money
with Prayer for Issuance of a Writ of
Preliminary Attachment and
- versus - Damages

ALICE SANTOS
Defendant.

x---------------------------------------x

DEFENDANT’S PRE-TRIAL BRIEF

DEFENDANT, through the undersigned counsel unto this Honorable

Court, hereby respectfully avers:

STATEMENT OF THE CASE AND RELIEFS PRAYED FOR

1.1 This is a Complaint for Collection of Sum of Money with Prayer

for Issuance of a Writ of Preliminary Attachment and Damages
filed by Plaintiff Peter Cruz against herein Defendant ALICE
SANTOS involving an indebtedness amounting to P2.5 Million.

1.2 Herein Defendant has already extinguished said obligation

prior to its due date through payment as evidenced by two
Acknowledgement Receipts signed and dated by herein
Plaintiff.

1.3 There is no particular act by the Defendant in incurring the

obligation or in the performance thereof that constitutes fraud
and that waarants the issuance of a writ of preliminary
attachment.

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 SUMMARY OF FACTS ADMITTED

2. 1 The defendant only admits those facts stated in her answer.

PROPOSED STIPULATION OF FACTS

3.1 On June 23, 2021, the Defendant borrowed from herein

plaintiff a sum of Two Million Five Hundred Thousand
Pesos (Php 2, 500, 000.00) which indebtedness is due
and demandable on June 23, 2022;

3.2 Defendant agreed to a twelve percent (12%) per annum

interest of the loan of Two Million Five Hundred
Thousand Pesos (Php 2, 500, 000.00);

3.3 As proof of said indebtedness, Defendant executed a

promissory note dated June 23, 2022;

3.4 Defendant did not fail, neglect nor refuse to pay the said
indebtedness prior to the due date. In fact, it was settled
even before June 23, 2022;

3.5 On December 20, 2021, while Defendant was at the

residence of the Plaintiff, the Defendant paid One Million
Five Hundred Thousand Pesos (P 1,500,000.00), plus
interest, through bank transfer as evidenced by the
Acknowledgement Receipt issued by the Plaintiff;

3.6 On June 1, 2022, while also at the residence of the

Plaintiff, the Defendant paid One Million Pesos
(P 1,000,000.00), plus interest, through bank transfer as
full and final payment of the debt as evidenced by the
Acknowledgement Receipt issued by the plaintiff; and

3.7 The Defendant did not receive any demand letter.

STATEMENT OF FACTUAL ISSUES

4.1 WHETHER OR NOT THE OBLIGATION HAS BEEN PAID

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4.2 WHETHER OR NOT DEFENDANT COMMITTED FRAUD IN
CONTRACTING THE DEBT OR INCURRING THEREBY
WARRANTING THE ISSUANCE OF A WRIT OF
PRELIMINARY ATTACHMENT

REFERRAL TO COMMISSIONER

5.1 The Plaintiff manifests that they are open to refer this case to and
commissioner/s.

TESTIMONIAL AND DOCUMENTARY EVIDENCE

6.1 EXHIBIT “1”- Judicial Affidavit of Alice Santos

6.2 EXHIBIT “2”- Promissory Note executed by Alice Santos dated

June 23, 2021

6.3 EXHIBIT “3”- Acknowledgement Receipt signed and dated by

Peter Cruz evidencing payment in the amount of P1.5 Million
Pesos on December 20, 2021

6.4 EXHIBIT “4”- Acknowledgement Receipt signed and dated by

Peter Cruz evidencing payment in the amount of P1 Million Pesos
on June 1, 2022

6.5 Defendant requests for reservation for marking and presentation

of additional documentary evidences which Defendant may
discover during the course of the proceedings.

WITNESSES TO BE PRESENTED

7.1 Alice Santos, the defendant in the case at hand;

VI. AVAILMENT OF THE MODES OF DISCOVERY

8.1 Defendant is willing to avail of the different modes of discovery.

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 VII. RULES, LAWS AND JURISPRUDENCE

9.1 Art. 1231 of the Civil Code states that obligations are
extinguished:

(1) By payment or performance;

(2) By the loss of the thing due;
(3) By the condonation or remission of the debt;
(4) By the confusion or merger of the rights of creditor and
debtor;
(5) By compensation;
(6) By novation.

Other causes of extinguishment of obligations, such as

annulment, rescission, fulfillment of a resolutory condition, and
prescription, are governed elsewhere in this Code.

9.2 Section 1, Rule 57 of the Rules of Court

Grounds upon which attachment may issue. — A plaintiff or any
proper party may, at the commencement of the action or at any
time thereafter, have the property of the adverse party attached
as security for the satisfaction of any judgment that may be
recovered in the following cases:

(a) In an action for the recovery of money or damages on a

cause of action arising from contract, express or implied,
against a party who is about to depart from the Philippines
with intent to defraud his creditors;

(b) In an action for money or property embezzled or

fraudulently misapplied or converted to his own use by a
public officer, or an officer of a corporation, or an attorney,
factor, broker, agent, or clerk, in the course of his
employment as such, or by any other person in a fiduciary
capacity, or for a willful violation of duty;

(c) In an action to recover the possession of personal property

unjustly detained, when the property, or any part thereof,
has been concealed, removed, or disposed of to prevent its
being found or taken by the applicant or an officer;

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 (d) In an action against a party who has been guilty of a fraud
in contracting the debt or incurring the obligation upon
which the action is brought, or in concealing or disposing
of the property for the taking, detention or conversion of
which the action is brought;

(e) In an action against a party who has removed or disposed

of his property, or is about to do so, with intent to defraud
his creditors;
(f) In an action against a party who resides out of the
Philippines, or on whom summons may be served by
publication.

9.3 Section 5, Rule 8 of the Rules of Court

The circumstances constituting fraud must be stated with
particularity.

9.4 Liberty Insurance Corporation v. Court of Appeals, G.R. No.

104405 (1993)

“To constitute a ground for attachment in Section 1(d), Rule 57

of the Rules of Court, it must be shown that the debtor in
contracting the debt or incurring the obligation intended to
defraud the creditor. A debt is fraudulently contracted if at the
time of contracting it, the debtor has a preconceived plan or
intention not to pay. The fraud must relate to the execution of the
agreement and must have been the reason which induced the
other party into giving consent which he would not have
otherwise given.”

9.5 Phil. National Construction Corp. v. Hon. Dy, 509 Phil. 1, 12

(2005)

Thus, the applicant for a writ of preliminary attachment must

sufficiently show the factual circumstances of the alleged fraud
because fraudulent intent cannot be inferred from the debtor's
mere non-payment of the debt or failure to comply with his
obligation.28 The particulars of such circumstances necessarily
include the time, persons, places and specific acts of fraud
committed.29 An affidavit which does not contain concrete and
specific grounds is inadequate to sustain the issuance of such
writ. In fact, mere general averments render the writ defective
and the court that ordered its issuance acted with grave abuse of
discretion amounting to excess of jurisdiction.

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 VIII. TRIAL DATES

10.1 Defendant is willing to agree on such trial dates as maybe

agreed in the course of the Pre-Trial Conference.

Respectfully submitted.

Tacloban City, Leyte. January 16, 2023.

ATTY. JOYMEL VICTORIA

Counsel for Defendant
IBP No. 987654;06/30/2022 Tacloban, Leyte
PTR No. PL. 7654321;04/01/22 Tacloban, Leyte
Attys. Roll No. 56565 August 8, 2018
MCLE Compliance No. V-0005632, 08-15-2022

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