REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION

REGIONAL TRIAL COURT
BRANCH 110
PASAY CITY

DENNIS R. BELMONTE,
Plaintiff,

- versus -
Civil Case No. R-PSY-15-20431-
CV
For: Annulment and Recovery of
TCT 148299 and Damages
MARIANDY A. FRICKE,
JESUS MANALANSAN,
MELECIA D. GALANIDA
and JACINTO EDUARDO
B. AGANA,
Defendants.
x---------------------------------------x

MEMORANDUM
(For the Defendants)

Defendant, MELECIA GALANIDA, by counsel and unto

the Honorable Court, most respectfully avers:

I.
Facts of the Case

1.1 Hans Joachim Fricke (hereinafter, “HANS”) and

defendant Mariandy Fricke (hereinafter, “MARIANDY”) are
husband and wife. HANS is a German National, while
MARIANDY is a Filipino National.

1.2 During their marriage, HANS and defendant

MARIANDY acquired several real properties, including the real
property covered by TCT No. 148299 of the Registry of Deeds
for Pasay City, located in Pasay City (hereinafter, the
“SUBJECT PROPERTY”).

1.3 Also, during their marriage, HANS executed a

waiver of what rights and interests he has over the SUBJECT
PROPERTY in favor of defendant MARIANDY.

1.4 Considering that HANS, through the waiver, gave

full ownership of the SUBJECT PROPERTY to defendant
MARIANDY, the latter exercised all her rights of ownership
over the SUBJECT PROPERTY, which includes subdividing the
same, and selling the subdivided lots.

1.5 The marriage between HANS and defendant

MARIANDY turned from sweet to sour, and eventually bitter.
HANS allegedly obtained a divorce in Germany against
defendant MARIANDY. The alleged divorce, however, up to
date, has not been recognized by Philippine courts of
competent jurisdiction.

1.6 Likewise, the alleged divorce did not dwell on the

settlement of the properties of HANS and defendant
MARIANDY located in the Philippines.

1.7 To the surprise of the defendants, plaintiff instituted

the instant case claiming that HANS sold the SUBJECT
PROPERTY to him, but only through a virtue of a contract to
sell.

1.8 Plaintiff claims that HANS had full ownership of the

SUBJECT PROPERTY when sold to him, and alleged that the
Affidavit of Waiver executed by HANS in favor of defendant
MARIANDY that led to the issuance of TCT No. 148299 of the
Registry of Pasay falsified by the herein defendant, and thus,
prayed for the nullification of TCT No. 148299 , and all titles
derived from the latter.

1.9 Simultaneous to the filing of the instant case, HANS

filed a complaint for falsification relative to the Affidavit of
Waiver he executed in favor of defendant MARIANDY against
herein defendants before the Office of the City Prosecutor of
Pasay (hereinafter, “OCP-PASAY”). The OCP-PASAY dismissed
the complaint for falsification for lack of evidence and probable
cause.

1.10 During the mandatory court-annexed mediation and

judicial dispute resolution, the parties herein failed to reached
an amicable settlement. Hence, the pre-trial and trial on the
merits ensued.

1.11 After the defendants’ rested their respective cases,

the parties were directed to file their respective Memoranda.

1.12 Hence, this Memoranda for the plaintiffs.

II.
The Issue

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 2.1 The sole issue to be resolved is whether or not the
plaintiff has a cause of action to cause the nullification of TCT
No. 148299 of the Registry of Deeds for Pasay City, and all the
titles derived therefrom.

III.
Arguments/ Discussion

3.1 Defendant has no cause of action to cause the

nullification of TCT No. 148299, and all the subsequent titles
derived therefrom.

3.2 Section 2, Rule 2 of the Rules of Civil Procedure, as

amended by A.M. No. 19-10-20-SC is herein quoted, to wit:

“Section 2. Cause of action, defined. - A

cause of action is the act or omission by which
a party violates a right of another.”

3.3 In the case of China Banking Corporation v. Hon.

Court of Appeals and Armed Forces and Police Savings & Loan
Association, Inc. (AFSLAI), G.R. No. 153267, 23 June 2005,
the Honorable Supreme Court enumerated the elements of a
cause of action, to wit:

“Otherwise stated, a cause of action has

three elements, to wit, (1) a right in favor of the
plaintiff by whatever means and under
whatever law it arises or is created; (2) an
obligation on the part of the named defendant
to respect or not to violate such right; and (3)
an act or omission on the part of such
defendant violative of the right of the plaintiff
or constituting a breach of the obligation of the
defendant to the plaintiff.”

3.3 In the instant case, none of the elements of a cause

of action.

3.4 Plaintiff has not established his right over the

SUBJECT PROPERTY by the required preponderance of
evidence.

3.5 It is worthy to point out that plaintiff is claiming

ownership over the SUBJECT PROPERTY on the allegation
that he bought the same from HANS. The document, however,
to establish the alleged sale is a “CONTRACT TO SELL.”

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 3.6 Jurisprudence is replete - In a contract to sell, the
seller retains ownership of the property until the buyer has
paid the price in full.

3.7 In the case of Spouses Delfin O. Tumibay and

Aurora Tumibay, et al., v. Spouses Melvin Lopez and Rowena
Gay T. Visitacion Lopez, G.R. No. 171692, 03 June 2013, the
Honorable Supreme Court held:

 “A contract to sell has been defined as "a

bilateral contract whereby the prospective
seller, while expressly reserving the ownership
of the subject property despite delivery thereof
to the prospective buyer, binds himself to sell
the said property exclusively to the prospective
buyer upon fulfillment of the condition agreed
upon, that is, full payment of the purchase
price." In a contract to sell, "ownership is
retained by the seller and is not to pass until
the full payment of the price xxx.”

3.8 In the instant case, the plaintiff failed to prove that

he has complied with the conditions of the contract to sell so
that ownership would pass unto him. Hence, on this note
alone, the instant case should be dismissed, as no right of
ownership passed on to the plaintiff, that would give him the
right over the SUBJECT PROPERTY.

3.9 What is more, it is worthy to point out that the

property subject of the case is owned and registered in the
name of defendant MARIANDY.

3.10 Thus, on the assumption that the plaintiff indeed

purchased the subject property from HANS, the estranged
husband of defendant MARIANDY, no rights over the same
were transferred to the plaintiff. For one, the property is not
registered in the name of HANS. Second, HANS is a foreign
national, and thus, could not own any real property in the
Philippines. Plaintiff was aware of the above facts when he
allegedly purchased the subject property and was admitted by
the plaintiff during his testimony.

3.11 The more pertinent portions of the testimony of the

plaintiff are herein quoted to wit:

“TSN
28 February 2018

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 Page 15

xxx

Q. Also in your answer no. 4. At that time

you executed a contract to sell with Hans
Fricke, under whose name the subject property
is registered?

A. Under the name Mariandy.

Q. So despite knowledge of said fact you

still proceeded to continue with the contract to
sell?

A. Yes.

Q. Also, mr. witness, in your affidavit you

made mention and declared that Hans Fricke,
your seller, is a German national, correct?

A. Yes.

Q. And that in your Answer in no. 25 on

the last part That Hans Fricke cannot own a
land in the Philippines being a foreigner,
correct?

A. Yes that is true.

Page 16

Q. So now it is safe to say, mr. witness,

that Hans Fricke, a German national and who
cannot own a land here in the Philippines
cannot transfer any rights or interests over the
subject property of this case.

A. No because as far as I know.

Q. Answer me yes or no, mr. witness?

A. Yes.

Q. He cannot transfer anything?

A. It depends.

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 Q. Answer me yes or no, mr. witness?

ATTY. FORMOSO

Your Honor, already answered.

THE COURT.

The answer is yes.

xxx

Page 18

ATTY. FORMOSO:

Q. Mr. witness, you stated earlier that you

know that Hans Fricke, your seller, is a
German national, is that correct?

THE WITNESS:

A. Yes.

Q. And why did you still purchase that

property?

A. Because he is my business partner, in

case this case will not prosper it can always
return the money.

THE COURT:

If this case will not prosper?

THE WITNESS:

A. If we will not win in this case, he will

return the money to me.

xxx.”

3.12 Based on the testimony of the plaintiff, he is aware

that HANS could not sell the SUBJECT PROPERTY
considering that HANS is a foreign national, and that the
SUBJECT PROPERTY is owned and registered in the name of
defendant MARIANDY. Hence, plaintiff is not a buyer in good

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faith, and no rights whatsoever was conferred upon him over
the SUBJECT PROPERTY. He filed the instant case in bad
faith, knowing fully the possibility that the instant case would
not prosper.

3.13 Basic is the rule that “he who comes to court

must come with clean hands.”

3.14 In the case of DPWH v. Ronaldo Quiwa, G.R. No.

183444, 08 February 2012, the Honorable Court held, to wit:

“Parties who do not come to court with

clean hands cannot be allowed to profit from
their own wrongdoing. The action (or inaction)
of the party seeking equity must be “free from
fault, and he must have done nothing to lull
his adversary into repose, thereby obstructing
and preventing vigilance on the part of the
latter.””

3.15 Furthermore, even HANS, who testified as a witness

for the plaintiff was not able to prove by clear and convincing
evidence his ownership over the SUBJECT PROPERTY.

3.16 The more pertinent portions of the testimony of

HANS are herein quoted to wit:

“TSN
12 April 2019
Page 8

xxx

ATTY. DASAYON

Q. For confirmation Mr. Witness, in your

Judicial Affidavit you mention that you are a
German citizen, is that correct?

WITNESS:

A. Yes.

Q. Also, Mr. Witness, in your Judicial

Affidavit you mention that you are married
with one of the defendants in this case, you
were divorced and were given a Divorce Decree.
My question is – did you file a recognition of

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 that Divorce Decree in any court with
competent jurisdiction here in the Philippines?
Page 9

A. As far as I know, I did not.

Xxx

ATTY. DASAYON

Q. So, Mr. Witness, in the Contract to Sell

you mention that Direct Funders gave to you a
property subject of this case, would that be
correct?

WITNESS:

A. Yes, sir.

Q. Do you have proof?

A. Yes, sir,

Q. Was it attached in your Judicial

Affidavit?

Page 10

A. It was not attached, sir.

ATTY. CABANGON:

We will stipulate your Honor, that is was

not attached.

ATTY. DASAYON.

Okay, that would be all, your Honor.

xxx.”

3.17 Based on the above testimony of HANS, there is no

doubt that his claim of full ownership over the SUBJECT
PROPERTY was not supported by clear and convincing
evidence. There no documentary evidence identified and
offered in evidence to prove how HANS acquired full ownership
of the SUBJECT PROPERTY. Absent the said documentary
proof, the claim of ownership of HANS, and thus, giving him

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the right to sell the SUBJECT PROPERTY to the plaintiff.

3.18 In the case of LNS International Manpower Services

v. Armando C. Padua, Jr., G.R. No. 179792, 05 March 2010,
the Honorable Supreme, Court held:

“Bare allegations which are not supported

by any evidence, documentary or otherwise,
sufficient to support a claim, fall short to
satisfy the degree of proof needed. Bare and
unsubstantiated allegations do not constitute
substantial evidence and have no probative
value.”

3.19 Clearly, the ownership of HANS over the SUBJECT

PROPERTY was not proven by the required preponderance of
evidence, assuming he may sell the subject property. Clearly,
HANS cannot sell what he could not own. Thus, no right or
interest whatsoever, much more ownership was transferred to
the plaintiff that would give the plaintiff the right to recover
the SUBJECT PROPERTY and cause the nullification of the
subject titles. This is in accordance with the legal truism that
“the spring cannot rise higher than its source.” (Virginia
Calalang v. Register of Deeds, et al., G.R. No. L-76265, 11
March 1994)

3.20 Given the foregoing discussion, there is no doubt

that plaintiff failed to establish by preponderance of evidence
his right over the SUBJECT PROPERTY, which was allegedly
violated by the defendants.

Prayer

WHEREFORE, premises considered, it is respectfully

prayed unto the Honorable Court that the instant case be
dismissed.

Other reliefs, just and equitable under the premises, are

also prayed for.

Quezon City for Pasay City, 08 January 2023.

COPY FURNISHED:

EXPLANATION

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 That the foregoing Memorandum (For the Defendants)
was served to the counsel of the plaintiff by registered mail
due to distance to effect personal service.

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