1

Republic of the Philippines

REGIONAL TRIAL COURT
7th Judicial Region
Branch 62, Oslob, Cebu

EDITHA C. BALBUENA
Petitioner,
Pro. Remedies Case No_______

- versus - For: PRELIMINARY INJUNCTION

WITH PRAYER FOR TEMPORARY
RESTRAINING ORDER (T.R.O.)

IRMA BALBUENA LACSON

Respondent,

EX-OFFICIO PROVINCIAL SHERIFF OF

OSLOB, CEBU,
Public Respondent,
x-----------------------------------------------------------x

PETITION

COMES NOW, Petitioner, thru undersigned counsel and

unto this Honorable Court, most respectfully states:

1. That petitioner, EDITHA C. BALBUENA, is a Filipino, of

legal age, and a resident of Poblacion, Samboan, City,
Cebu, Philippines, where she could be served with orders
and other court processes or through the office of the
undersigned counsel;

2. That respondent is likewise Filipino, of legal age and a

resident of Poblacion, Samboan, Cebu, where she may be
serve with summons and other processes of this
Honorable Court;

3. That public respondent, is a person task to conduct the

Extra Judicial Foreclosure and Notice of Extrajudicial
Sale, is with office address at Regional Trial Court, Oslob,
Cebu, Philippines, where he may be serve with summons,
processes and orders of this Honorable Court;
 2

4. That the Petitioner is the registered owner of the parcel

of land known as Lot No. 1148, Cad 846-D, M-1, located
at Poblacion, Samboan, Cebu, Philippines;

5. That the said parcel of land is covered by a Homestead

Patent with Katibayan ng Original na Titulo Blg. OP-
54906 (Original Certificate of Title No. OP-54906). A copy
of the said Katibayan ng Original na Titulo Blg. OP-
54906 is hereby attached as Annex “A”;

6. That the said Katibayan ng Original na Titulo Blg. OP-

54906 was issued to the Petitioner on March 29, 2004.
The said certificate of title was subject to a restriction
which is apparent on the title and that it must conform
to Sec. 118, 119, 121, 121 and 124 of Commonwealth
Act No. 141;

7. That thee said restriction that is apparent on the title

explicitly provides that “Except in favor of the
Government or any of its branches, units, or institutions,
lands acquired under free patent or homestead
provisions shall not be subject to encumbrance or
alienation from the date of the approval of the application
and for a term of five years from and after the date of
issuance of the patent or grant, nor shall they become
liable to the satisfaction of any debt contracted prior to
the expiration of said period, but the improvements or
crops on the land may be mortgaged or pledged to
qualified persons, associations, or corporations.

"No alienation, transfer, or conveyance of any homestead

after five years and before twenty-five years after
issuance of title shall be valid without the approval of the
Secretary of Agriculture and Commerce, which approval
shall not be denied except on constitutional and legal
grounds.”

8. That on March 04, 2009, Petitioner and respondent had

entered into a Real Estate Mortgage wherein Petitioner
owes the respondent a sum of THREE HUNDRED
TWENTY THOUSAND PESOS (P 320,000.00) payable in
one (1) year at 21% interest per annum;

9. That as a security for the said indebtedness, the

Petitioner left with no choice but to have the aforesaid lot
be a subject of the mortgage. A copy of the said Real
 3

Estate Mortgage is hereby attached as Annex “B” and

made an integral part hereof;

10. That the Petitioner acknowledges her indebtedness to

the respondent and up to now it is still left unpaid;

11.That unknown to the Petitioner, respondent had filed an

Extra Judicial Foreclosure of Mortgage and the Office of
the Sheriff of Oslob, Cebu, had already posted and
scheduled a Notice of Extra-Judicial Sale of the aforesaid
property that is the subject matter of the Real Estate
Mortgage. The Public Auction Sale was scheduled by the
Sheriff on February 04, 2015. A copy of the Notice of
Extra-Judicial Sale is hereby attached as Annex “C”;

12. That the Petitioner will stand to lose her rights and
ownership over the said property if the public auction
sale will push through as the same will be considered as
void because the subject matter of the sale is subject to
restrictions that are apparent on Katibayan ng Original
na Titulo Blg. OP-54906 (Original Certificate of Title No.
OP-54906;

13. That the Real Estate Mortgage between the Petitioner

and the respondent was executed on March 04, 2009 and
at the time of the execution of the Real Estate Mortgage,
the subject parcel of land cannot be mortgaged as it is
still within the prohibitive period;

14.That the said prohibition is embodied under Sec. 118,

Act No. 456 which state that:

Sec. 118 ”Except in favor of the Government or any of its

branches, units, or institutions, lands acquired under
free patent or homestead provisions shall not be subject
to encumbrance or alienation from the date of the
approval of the application and for a term of five years
from and after the date of issuance of the patent or
grant, nor shall they become liable to the satisfaction of
any debt contracted prior to the expiration of said
period, but the improvements or crops on the land may
be mortgaged or pledged to qualified persons,
associations, or corporations.

"No alienation, transfer, or conveyance of any homestead

after five years and before twenty-five years after
issuance of title shall be valid without the approval of
 4

the Secretary of Agriculture and Commerce, which

approval shall not be denied except on constitutional
and legal grounds.”

15. That relying on the said law, the Extrajudicial Sale of

the aforesaid parcel of land would be null and void and is
considered as in the exercise of futility;

16.That there are other remedies within which the

respondent may seek a cause of action against the
petitioner for the payment of her indebtedness and
not with the remedy of Extrajudicial Foreclosure of
the subject property as it is prohibited under the law
on the ground that the subject matter of sale cannot
be an object of any transaction as there are conditions
and restrictions that must be complied;

17.Thus, in order to prevent serious damage and

irreparable injury to the petitioner, there is extreme
urgency that a temporary restraining order (T.R.O.) be
issued pending resolution for the issuance of the writ
of preliminary injunction.

Grounds in Support for the Issuance of Temporary

Restraining Order (T.R.O.)/Preliminary Injunction:

a. That the petitioner is entitled to the relief demanded,

and the whole or part of such relief consists in
restraining the Court Sheriff of Oslob, Cebu, Philippines,
from continuing the sale of the aforesaid property on
February 04, 2015 considering that the sale is without
the approval and consent of the Secretary of Agriculture
and Commerce as embodied in the restriction of the title;

b. That the commissions, continuance of the act

complained of would probably work injustice to the
petitioners;

c. That the respondent is doing, threaten, or are about to

do, or are procuring or suffering to be done, some act
probably in violation of the rights of the petitioner
respecting the subject of the action;
 5

d. That the petitioner is willing to put up a bond in such

reasonable amount as payment for whatever damages the
respondents may suffer if it would turn out later that
petitioners is not entitled to said Writ of Preliminary
Injunction;

e. Petitioner have no other plain, speedy and adequate

remedy in the ordinary course of law except this present
petition.

PRAYER

WHEREFORE, premises considered, it is most

respectfully prayed of this Honorable Court that due, to the
extreme necessity and urgency to prevent further serious
damage to the Petitioners, to issue a Temporary Restraining
Order (T.R.O.) against the respondent and public respondent
or any person or representative acting on the respondents’
behalf effective from further taking selling the aforesaid real
estate property, after due notice and hearing, a PRELIMINARY
INJUNCTION be issued and be made permanent to refrain
and restraint respondents or any person or representative
acting in their behalf from further causing damage to the
petitioners.

Petitioner further prays for such other reliefs and

remedies consistent with law, justice and equity.

Cebu City, Philippines, January 16, 2015.

DAVIDE, SUSUSCO and ASSOCIATES LAW OFFICE

COUNSEL FOR THE PETITIONER
RM. 306, Diaz Bldg., J. Avila St., Osmena Blvd.
Capitol Site, Cebu City, Philippines
Tel. No. (032) 4199720
By:

ATTY. GIOVANNI D. SUSUSCO

IBP Cebu City No. 957306 on 12-16-2014
PTR No. 7118813 1-05-2015/ Cebu Province
Roll of Attorneys No. 53097
Admitted to the Bar on April 26, 2007
MCLE COMPLIANCE NO. III-0013888 / April 22, 2010
MCLE COMPLIANCE NO. IV-0011855 / February 08, 2013
 6

VERIFICATION

I, EDITHA C. BALBUENA, Filipino, of legal age, and a

resident of Poblacion, Samboan, City, Cebu, Philippines, after
having been sworn to in accordance with law, hereby depose
and say::

1. That I am the PETITIONER in the above entitled

case and I have caused the preparation of the foregoing
PETITION;

2. That I have read and understood all the contents

thereof and the same are true and correct to the best of my
knowledge and belief based on authentic records;

3. That based on my personal knowledge, I have not

commenced any other action or proceeding involving the same
subject matter raised in this case in the Supreme Court, Court
of Appeals, or any Division thereof, or any other tribunal or
agency; and to the best of our knowledge, no such action is
pending with the Supreme Court, Court of Appeals or any
Division thereof, or any other tribunal or agency; should we
thereafter learn that a similar action of proceeding has been
filed or is pending before the Supreme Court, Court of
Appeals, or any Division thereof, or any other tribunal or
agency, I undertake to promptly inform this Honorable Court
or any of the aforesaid courts, such other tribunal or agency of
this fact within five (5) days therefrom.

IN WITNESS WHEREOF, I have hereunto signed this Verification

this __ day of _______________ 2015 in Cebu City.

________________________
EDITHA C. BALBUENA
AFFIANT
VIN # 2240-0006A-I1653

SUBSCRIBED AND SWORN to before me this __ day of

_________ 2015 at Cebu City, Philippines. Affiant exhibiting to me her
____________________ as proof of her competent identity.

Doc No. ____

Page No. ____
Book No. ___
 7

Series of 2015