Republic of the Philippines

NATIONAL CAPITAL JUDICIAL REGION

Regional Trial Court
Branch 232, Caloocan City

JOYCELYN G. LOLENG now known as

JAZZCELYN G. LOLENG represented
By Attorney-in-fact, BERNARD G.
LOLENG,
plaintiff, Civil case no. C-24702
For: Annulment/ Declaration
-vs- of Nullity of Deed of Sale
and Transfer Certificate of
Tittle, Reconveyance, and
Recovery of Possession and
Damages.
LUNINGNING JOSE HERNANDEZ
And PATERNO O. RESERVA,
defendants,

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

DEMURRER TO EVIDENCE

Defendants, through undersigned counsel, unto this Honorable Court,

respectfully moves for the dismissal of the above -entitled case on the
ground that upon fats and the law, the Plaintiff has shown no right to relief
they prayed for in their complaint. (Rule 33 of the Rules of Court)

Such insufficiency means that the further proceedings will waste the
precious time of this Honorable Court, and the further suffering of the
defendants in terms of litigation expenses and their health status due to old
age.

PREFATORY STATEMENT

In the Civil Case the Plaintiff makes the original allegations in a

complaint and bears the initial burden. The defendant then files a
responsive pleading denying some or all of the allegations and the burden
shift to them to prove their defenses or counterclaim.

The clear and convincing evidence standard is relatively difficult

standard to satisfy as it requires that the evidence be substantially more
probable to be true. In a civil claim, the common evidentiary standard of
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proof is the “Preponderance of Evidence” standard, in other words,
evidence only needs to b e greater than a 50% likelihood of being true.

Thus, the Clear and Convincing Standard is more strict than the
Preponderance of Evidence standard, but less than the Beyond a
Reasonable Doubt Standard.

The Clear and Convincing standard is a higher burden of proof and is

generally reserved for civil offences that have special elements to establish
common cases where the clear and convincing standard would be
appropriate include:

 Claims involving fraud

 Claims involving wills and inheritances
 Cases involving important family decisions
Such as withdrawing life support from a relative.

Thus, the clear and convincing standard is in legal claims where the
risk of loss is relatively high.

ARGUMENTS/ DISCUSSIONS

Cecile H. Wilson, the daughter of defendant Hernandez,

already knows Bernard Loleng since 2006 being their neighbors. On
the month of June 2016 she inquired about the property to Mr.
Bernard Loleng. The Latter told her that it’s for sale. He fold Cecile H.
Wilson to talk to his sister Jazzcelyn and also gave her the Contact
No. in the U.S.. On that same day Cecile called Ms. Jazzcelyn on his
U.S. Tel no. 121743149692 through her phone whis has a direct
access to the States. Plaintiff Jazzcelyn told her “ Walang problema
sa akin kausapin mo ex- husband ko. Sige basta makumbinse mo
sya at papaya sya na ibigay share ko”, and then she gave the Tel No.
defendant Paterno and saying “ibigay ko sayo number ni Paterno
12175024558, Good Luck”. Afterwards, Cecile called defendant
Paterno, at first defendant Paterno didn’t believed and asking for
proof, requesting Cecile to take a picture and send through his email,
so Cecile did and convinced defendant Paterno. Then they talked
about the process and the arrangement how to expedite the sale. He
gave the number of his brother Jaime O. Reserva, who is in the
Philippines and told Cecile that he will be the one who will represent
them during the sale by Virtue of the SPA.

Defendant Luningning was informed by her daughter Cecile

that Jaime O. Reserva is coming and equipped with SPA, pre-signed Deed
of Absolute Sale, TCT of the property (Original Copy), Xerox copies of the
passports of the plaintiff and the defendant Reserva, and other related
documents to conduct, represent the owners of the property and assist in
the sale. Full payment was received by the Latter at Banco De Oro, SM
Fairview Branch, on August 25, 2016. After the payment, Jaime turn over
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all the documents in the relation with the property. Defendant Luningning
and Cecile believed that they purchased the property legally, specially after
the payment they confirmed defendant Paterno about the payment and
send proof through email and he acknowledge.

The defendant Luningning Hernandez paid the agreed

consideration for the sale and defendant Reserve had accepted said
payment, surrendered and placed defendant Hernandez in the
possession of the property as well the turnover of its ownership to
her. By Virtue of the Special Power of Attorney to Jaime Reserva
dated July 07, 2016. Supported with the affixed signature of Paterno
Reserva, which authorized him in the selling of the said property. A
Deed of Absolute Sale signed by both defendant Reserva and plaintiff
Loleng, supported with their passport xerox copies, the Title of the
property and other documents was given to the defendant Hernandez
on August 25, 2016 after the payment.

During the Pre-trial the plaintiff identified witnesses namely: Ms.

JAZZCELYN G. LOLENG, one of the owner of the said property; Mr.
Bernard G. Loleng, representative/ attorney-in-fact of the plaintiff; Ms.
Marlyn T. Descalsota, corroborates with the plaintiff’s claims.

During Cross examination, plaintiff Jazzcelyn Loleng admitted

the existence of the Marriage Separation Agreement between her
and defendant Reserva, denying that she received any share of the
proceeds.

xxx xxx xxx (TSN page 18, July 20, 2021)

ATTY LACHICA:

Q: Now, let’s talk about the property here in the Philippines. When
the property was sold on July 25, 2016, did you not receive that share of
the proceeds from the defendant?

ATTY LACHICA:

I am trying to ask the first one. Your Honor, because the plaintiff here,
I was told by the defendant although she is in the U.S. that she got all the
sale of the property in the U.S. and also defendant Reserva………

COURT:

I think you can present that evidence when your day in court comes,
so insofar as this witness is concerned, the last question is? If she receives
the share, that is your question, right? With respect to the property here in
the Philippines?
ATTY LACHICA:

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 Yes, your Honor.

COURT:

Can you answer that, Ms. Witness?

WITNESS:

No, your Honor

COURT:

The answer is you did not receive any share?

WITNESS:

No share that I receive, your Honor.

That the testimony of plaintiff Loleng are lies and fabricated. If plaintiff
had any cause of action against Defendant Reserva, such cause of action
is Invited to him and she should not include defendant Hernandez as she
already and duly complied with what is incumbent upon her as buyer-in-
good faith to the subject property.

It is highly unfair for the Plaintiff to drag herein defendant Hernandez

to this litigation, especially at her advance age and sickly condition in life.
The conflict between plaintiff and defendant Reserva should have been
threshed out without necessarily impleading the defendant Hernandez. The
conflict between the ex-spouses are theirs and theirs alone and should not
have prejudiced and damaged herein defendant Hernandez.

The sale of the subject property in this case is legally valid and
existing, defendant Hernandez had paid the agreed consideration for the
same and defendant Reserva had accepted said payment, surrendered
and placed defendant Hernandez in the possession of the property as well
as the turned over of its ownership.

Moreover, let it be stated that plaintiff has no cause of action against

the defendant Hernandez as she has nothing to do with whatever
misunderstanding or conflict exist between plaintiff and defendant Reserva.
It is unfortunate that defendant Hernandez has to suffer perusal for merely
exercising her right as a plain and simple buyer of a real state property,
even in her twilight year.

At this juncture, defendant Hernandez is the legal possessor and

registered owner of the property subject of this litigation. Her possession
and ownership could not and should not be disturbed by whatever marital
conflict exists between the plaintiff and defendant Reserva.

Moreover, defendant Hernandez asserts, that the Philippine court’s

cannot judicially Honor and recognized the alleged statements made by the

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plaintiff as regards judgements or agreements declared or sanctioned by
foreign jurisdiction, for failure to have undergone the appropriate judicial
recognition process mandated by Philippine laws, thus they are ineffectual.

During the Cross examination of Mr. Bernard G. Loleng stated that he

was basing his statement on the statement of his sister in her Judicial
Affidavit, and admitted that he has no personal knowledge on the said
claims. Mr. Loleng also mentioned that he has been separated to his sister
for twenty years. Which strengthen our theory that he was testifying only
on matters which he learned from others.

xxx xxx xxx (TSN page 5, October 28, 2021)

ATTY LACHICA:
Q: In this case Mr. Witness you are the representative and, likewise,
at this moment you are a witness?

A: Yes, Sir.

Q: Have you read the full text of the complaint?

A: Yes, Sir

Q: By the way, where were you on Aug 25, 2016?

A: Senate Subdivision in Caloocan City.

Q: Did you witness the signing of the documents in this particular

case?

A: No, Sir.

Q: In your judicial affidavit Mr. Witness you were basing your

statement on the statement of your sister in her judicial affidavit that the
signature of your sister Joycelyn was fake or was not really the signature of
the sister, am I right?

A: Yes, Sir.

Q: You based on that on the affidavit given to you by your sister and
not by your personal knowledge?

A: Yes, Sir.

OBITER DICTUM (TSN Page 6, October 28, 2021)

COURT:

Panero, let us remember that the witness already admitted that he did
not see the transaction, yun po yung sinabi nya kanina perhaps this is just
a reiteration of what he said in his judicial affidavit already. Please proceed
for cross, Atty. Lachicha.

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ATTY. LACHICA: Yes, Your Honor

xxx xxx xxx (TSN page 8, October 28, 2021)

ATTY. LACHICA:

Q: Mr. Witness in your Judicial Affidavit on Question nos. 33,34 and 35

these statements were all from the affidavit of Ms. Jazzcelyn Loleng but
you have no personal knowledge of this Judicial Affidavit?

A: There is sir, my sister told that to me, sir.

RE-CROSS ADDITIONAL QUESTION

xxx xxx xxx (TSN page 11, October 28, 2021)

ATTY. LACHICA:

Q: How long have you been separated by your sister and your sister
has, I believe, some signature which are different from each other?

A: Twenty years, sir.

ATTY. LACHICA:

No more question your Honor.

In one case the Supreme Court clearly explained the hearsay as follows:

Indeed, under the rules of evidence, a witness can testify only to those
facts which the witness knows of his or her personal knowledge, that is,
which are derived from witness own perception. Concomitantly, a witness
may not testify on matters which he or she merely learned from others
either because said witness was told or read or heard those matters. Such
as testimony is considered hearsay and may not be received as proof of
the truth of what witnesses learned. This is known as the hearsay rule.
(Malayan Insurance Co., Inc. vs Rodelio Alberto, G.R. No. 194320,
February 1, 2012)

The concern hearsay rule is not the credibility of the witness presently
testifying, but the veracity and competence of the extrajudicial source of
witness information. (Alfonso V. Umali vs. Hon. Jose Hernandez,
Associate Justice, Sandiganbayan, IPI No. 15-35-SB-J)

Throughout the Direct examination of witness Marlyn T. Descalsota,

she confirmed all of her statements in her judicial affidavit. Which shows no
merit on the case at all. Same as witness Bernard Loleng, witness
Descalsota has no personal knowledge about the transactions. It clearly

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shows that witness Descalsota was testifying on matters which she merely
learned from others or simply derived on her own perception. To be clear,
personal knowledge is a substantive pre requisite for accepting testimonial
evidence to establish the truth of disputed fact. (Patula vs. People)

In the case at bar, the affidavit by the said witnesses, failed to make it
appear that indeed they have personal knowledge of the facts of the case.
This are all self-serving declaration favorable to the interest of the plaintiff
and declarant. It is non- admissible in evidence as proof of facts asserted.
“the vital objection to the admission of this kind of evidence is its hearsay
character.” (Richard Thomas Fitzsimmons vs. Atlantic, Gulf & Pacific
Co.., of Manila, G.R. No. L-2016, August 23, 1949)

Furthermore, such declarations are untrustworthy; to permit their

introduction in evidence would open the door to frauds and perjuries. (20
Am. Jur., Evidence, Sec. 558, page 470, 471.)

The issue of whether defendant Luningning Hernandez is buyer in

good faith and for value.

The Torrens System was adopted to “obviate possible conflicts of

title by giving the public the right to rely upon the face of the Torrens
certificate and to dispense, as a rule, with the necessity of inquiring further.”
One need not inquire beyond the four corners of the certificate of title when
dealing with registered property. (Sec. 44 of P.D. No. 1529)

By her overt acts, Luningning Hernandez together with her daughter

Cecile verified the authenticity of the land titled at the Registry of Deeds of
Caloocan. There was no annotation on the same this deemed a clean title.
Also, she relied on the SPA executed by defendant Reserva to his brother
Jaime Reserva, duly executed and notarized with the original copy of the
title (TCT) of the property, Deed Of Absolute Sale, Copies of passports of
the owners, and other related documents which was showed to her by
Jaime Reserva. Authority shows that it is valid and regular on its face. The
SPA contains a notaried Seal.

The Special Power of Attorney (SPA) is a notarized document and

therefore, presumed to be valid and duly executed. Thus, defendant
Hernandez reliance on the notarial acknowledgement found in the SPA to
Mr. Jaime Reserva is sufficient evidence of good faith…

As discuss earlier, defendant Hernandez did conduct further inquiries

by relying not only on the Certificate of Title, but also on defendant Reserva
and plaintiff’s signatures on the Deed of Absolute Sale. Records shows that
there was a judgment of the dissolution of marriage, Marriage Separation
Agreement between the plaintiff and his ex-husband Reserva on the
subject property issued in the State of Illinois, U.S.A. dated 27 th October
2016.

Defendant Hernandez submitted that she bought the property

knowing that Paterno Reserva and Jazzcelyn Loleng were ex-spouses,

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invoking Civil Code and Family Code Provisions on the nature of conjugal
properties even there were both American citizens already.

The question of whether Paterno O. Reserva and Jazzcelyn Loleng

where already American citizens at the time of property sale to Luningning
Hernandez. “Thus no longer covered by our laws relating to family rights
and duties.” (Florentino W. Leong and Elena Leong, Et Al. vs. Edna C.
See, G.R. No. 194077, December 03, 2014)

Based on the above jurisprudence;

Even assuming the procurement of title was tainted with fraud and
mis representation,” such defective title maybe source of a completely legal
and valid title in the hands of an innocent purchaser for value.”

Article 428 of the Civil Code provides:

The owner as the right to enjoy and disposed of a thing, without other
limitations done those established by law. The owner as also the right of
action against the holder and possessor of the thing in order to recover it.

Lastly, an allegation of fraud must be substantiated. Rule 8, Sec 5 of

the Rules of Court provides:

Fraud, mistake, condition of the mind in all averments of fraud or

mistake, the circumstances constituting fraud or mistake must be stated
with particularity. Malice intent, knowledge or other condition of the mind of
a person maybe averred generally. (emphasis supplied) Settled in the rule
that forgery cannot be presumed and must be proved by clear positive and
convincing evidence by the party alleging the same. (Adelfa Dio Tolentino
et. al. vs. Spouses Maria Jerera et.al., G.R. No. 179874)

The instant suit is a clear manifestation of plaintiff’s bad faith,

opportunism and greed, having taken advantage to the defendant
Hernandez advance age and sickly status, and subject to outright dismissal
of the above entitled case as plaintiff has no legal cause of action to
institute against the defendant.

“The evidence of the prosecution must stans or fall on its

merits, and cannot be allowed to draws strength from the weakness
or absence of the evidence for the defense.”

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 PRAYER

WHEREFORE, premises considered, it is respectfully prayed of

this Honorable Court to GRANT the instant Demurrer to Evidence. for
having no legal cause of action of the plaintiff and insufficiency of evidence

Other reliefs are likewise prayed for.

May 4, 2022, Caloocan City.

ATTY. JOSE C. LACHICA JR.

Counsel for the Defendants
IBP Lifetime No. 04322; March 5, 2022
PTR NO.2463687-D; Jan 3, 2022/Quezon City
Roll of Attorney: 28251
MCLE Compliance No. VI-0022482 Valid until April 14, 2022

NOTICE OF HEARING

The Branch Clerk of Court

RTC, Branch 232
Caloocan City

Greetings!

Please take notice that the foregoing DEMURRER TO EVIDENCE

will be heard consideration and approval of the Honorable Court at their
most available calendar date without further argument.

ATTY. JOSE C. LACHICA JR.

Counsel for the Defendants

Copy Furnished:

ATTY. JULES BOY R. VALDEZ

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Counsel for the Plaintiff
26 A Rudicon Homes, Abenojar St.,
Brgy Culiat, Quezon City 1128.

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