REPUBLIC OF THE PHILIPPINES

FOURTH JUDICIAL REGION

REGIONAL TRIAL COURT
BRANCH 33
SINILOAN, LAGUNA

PEOPLE OF THE
PHILIPPINES,

-versus- CRIMINAL CASE NO. S-8015

For: Estafa
SERAFIN ZALDIVIA, Jr.,
Accused.
x--------------------------------------x

ENTRY OF APPEARANCE AND

MOTION FOR RECONSIDERATION OF THE
DECISION DATED 22 OCTOBER 2021

The undersigned law office, unto this Honorable Court most

respectfully enters its appearance as counsel for the Accused
SERAFIN ZALDIVIA, JR., and prays that all Decisions, Orders,
Resolutions, and processes issued by the Honorable Court and
pleadings filed by the parties be sent at the undersigned counsel’s
address. The Withdrawal of Appearance of the previous counsel is
attached herein as Annex “1”.

COMES NOW the Accused and unto this Honorable Court, in

filing a Motion for Reconsideration to its Decision dated 22 October
2021, most respectfully states:

TIMELINESS
1. That last 19 November 2021, the Accused received the Decision
of this Honorable Court dated 22 October 2021 acquitting him of the
violation of Section 4, Presidential Decree No. 957 while finding him
guilty beyond reasonable doubt of the crime of Estafa;

2. That considering that the Accused has fifteen (15) days from
receipt to file this Motion to Reconsideration to the said decision, the
instant pleading being filed today is filed on time;

ARGUMENTS

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 3. That in its Decision dated 22 October 2021, the Honorable
Court rendered its decision with respect to the instant criminal cases
against Accused Serafin Zaldivia, Jr., to wit:

“WHEREFORE, premises considered, criminal case

no. S-8104 accused SERAFIN ZALDIVIA, JR. is hereby
ACQUITTED for failure of the prosecution to prove the
guilt of the accused beyond reasonable doubt.

HOWEVER, in criminal case no. S-8105, accused is

found GUILTY of the crime of ESTAFA, pursuant to R.A.
10951, accused is hereby sentenced to an indeterminate
penalty of preventive imprisonment for a minimum
period of thirty (30) days, ARRESTO MENOR to a
maximum period of six (6) months, ARRESTO MAYOR.

In terms of civil liability, the accused SERAFIN

ZALDIVIA JR., is hereby ordered to return the amount of
fifty-eight thousand pesos (Php58,000.00) to private
complainants Helen Cabaltera Serrano and Mariano G.
Serrano Jr., within ninety (90) days upon receipt with
interest of 6% interest (sic) per annum to be computed
upon receipt of this decision, until full satisfaction
thereof.

SO ORDERED.

Siniloan, Laguna, October 22, 2021.”

(Underscoring ours)
4. That with all due respect to the Honorable Court, the defense
moves for a reconsideration of the Court’s finding of guilt against the
Accused for the crime Estafa, in Criminal Case No. S-8015;

5. That in moving for reconsideration, the Defense most humbly

submits that the guilt of the Accused has not been sufficiently
established, due to the following arguments;

a. THAT THE VIOLATION OF TERMS OF THE SALE

WAS NEVER PROPERLY ESTABLISHED BY THE
PROSECUTION;

b. THE ACCUSED NEVER APPROPRIATED ANY

AMOUNT FROM THE PRIVATE COMPLAINANT;

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 c. THAT THE ACCUSED NEVER SOLD THE PROPERTY
TO ANOTHER TO THE PREJUDICE OF THE
PRIVATE COMPLAINANT AS TO CONSITUTE
ESTAFA;

6. That the above stated arguments shall be further discussed

herein in toto;

THAT THE VIOLATION OF

TERMS OF THE SALE WAS
NEVER PROPERTY
ESTABLISHED BY THE
PROSECUTION

7. That with all due respect, it is respectfully submitted that the

violation of the terms of the sale was never established by the
Prosecution during the proceedings, more so was the terms of the sale
itself;

8. That from the onset, in their Sumbong Salaysay dated 12 July

20111, the private complainants Mariano G. Serrano and Helen C.
Serrano stated that there was no written document of the sale and
attached only the payment receipts they made to ZALDIVIA
DEVELOPMENT CORPORATION in the amount of Php58,000.00;

9. That further and in addition to the Php58,000.00 the Private

Complaints made mention of a commission in the amount of
Php15,000.00 and some unpaid amounts for his services rendered as
a driver for the accused Jun Zaldivia2;

10. That it appears that even the Private Complainants are unsure
of the amount due to settle their purchase of the property designated
as Lot 12 Block 3;

11. That in any case, the Accused testified that the Private
Complainants are short of completing the amount of Php140,000.00
selling price to wit:

“Atty. Bellosillo: Magkano po ba ang balanse nila?

Court: Answer in figure, how much?

1
Sumbong Salaysay dated 12 July 2011, Exhibit “F” for the Prosecution
2
Paragraph 4, Ibid.
3
 A: P140,000.00 and kontrata, minus
P58,000.00, eh kasi dito ho naman
hindi istorya ang nakalagay dito eh,
yung hong amount, kasi may eded na ho
ako eh, ang nabayaran ay P58,000.00.3”

12. That considering the consideration in the oral sale was never
fully established, what more of the obligations of the parties to the
same. As such, logic would dictate that the parties cannot transgress
a sale where their obligations are basically undefined.

13. That clearly, the terms of the sale were never proven in the
proceedings before this Honorable Court. However, it should be
noted that the Private Complainants Serrano admitted to having
purchased the property from Zaldivia Development Corporation and
not the accused4;

14. That thus it would be puzzling to hold the Accused as the one
liable for any transgression against the Private Complainant. The
Accused was never under the sole obligation to deliver the property to
the Private Complainant, nor to transact with the Private
Complainants regarding the Property;

15. That knowledge of the sale does not make the Accused the
responsible participant in the transaction between Zaldivia
Development Corporation and the Private Complainant. The Accused
merely assisted the corporation in his own way as a responsible
family member. He cannot simply be made liable, criminally or civilly
on this regard;

16. That in fact, the Private Complainant did not initiate their
Sumbong Salaysay against the Accused alone; the original
Respondents were the accused 1.) Serafin “Jun” C. Zaldivia Jr., 2.)
Ofelia C. Zaldivia 3.) a certain “John Doe” who is the chairman of the
Zaldivia Development Corporation/Zaldivia Village, and 4.) Ma.
Cristina Zaldivia Ponce;

17. That further, the Tax Declaration evidencing ownership

submitted by the prosecution over the property was not even in the
name of the Accused, but that of his father Serafin Zaldivia Sr., Balo;

3
Page 9 to 10, Transcript dated 19 February 2018
4
Paragraph 3, Sumbong Salaysay (Exhibit “F”)
4
 18. That the Private Complainants never offered any evidence that
the Accused was the one solely responsible for dealing with them nor
that the Accused had sole and ultimate control over the properties.
Thus they cannot attribute any liability towards him with regards to
the instant criminal case or any for case for that matter.

THE ACCUSED NEVER

APPROPRIATED ANY AMOUNT
FROM THE PRIVATE
COMPLAINANT;

19. That finding for the guilt the Accused, the Honorable Court
stated the following in its Decision dated 22 October 2021:

“Xxx. What is certain, at this point, is that the private

complainants has paid fifty-eight thousand
(Php58,000.00) pesos to the accused and that the
accused has never denied this fact. (emphasis
supplied);”

20. That with all due respect and candor to the Honorable Court,
though the Accused did not deny that the Private Complainant paid
said amount, the Accused never received the whole Php58,000.00
pesos from the Private Complainant;

21. That in the Salaysay dated 12 July 2011 5 the Private

Complainants attached receipts which were eventually marked as
Exhibits “A” to “A-28” for the Prosecution would show that the
amounts delivered were not solely received and signed by the
Accused;

22. That initially from the Salaysay of the Private Complainants,

they stated that it was the Accused Jun Zaldivia and Ofelia Zaldivia
who were the ones who received th e amounts they paid;

23. That however, during the course of his testimony the Accused
identified the signatures therein, and determined that some were
signed by Serafin Zaldivia, Sr., the Accused’s father. A short
breakdown of the marked receipt exhibits and the respective
signatures are shown as follows:

RECEIPTS: SIGNATURE
Exhibits “A” to “A-5” SERAFIN “JUN”
5
Exhibit “F” for the Prosecution
5
 (Six Receipts) ZALDIVIA, Jr.
Exhibits “A-6” to “A-14”, “A-16” OFELIA ZALDIVIA
to “A-17” and “A-24” to “A-28”
(Sixteen Receipts)
Exhibits “A-15”, “A-18” to “A-23” SERAFIN ZALDIVIA, Sr.
(Seven Receipts)

24. That from the above-stated it is apparent that it is not the

Accused who solely received the amounts from the Private
Complainants Serrano. The Accused was never in control of the whole
amount paid;

25. That on a side note, the Private Complainant was also asking
the Accused for his alleged unpaid driving fees to be credited together
with the amounts he paid for the property. Clearly, he was bundling
the Accused and the Zaldivia Corporation together, yet the case for
misappropriation was against the Accused alone;

26. Thus, there is no reason for the Accused to be singled out and
be made liable for deceitful acts of misappropriation, as there was no
evidence presented showing him to be the one who actually pocketed
these amounts;

THAT THE ACCUSED NEVER

SOLD THE PROPERTY TO
ANOTHER TO THE PREJUDICE
OF THE PRIVATE COMPLAINANT
AS TO CONSITUTE ESTAFA;

27. That in finding the Accused guilty of the crime of Estafa it was
determined by the Honorable Court that the accused allowed another
to occupy the property of the Private Complaints, despite their
payment and sale;

28. That with all due respect to the findings of this Honorable
Court, the Accused never deceived the Private Complainants so as to
deprive them of their rights over their house purchased;

29. That it should be noted that the Private Complainants being a

close friend, was able to purchase the property from the Zaldivia
Corporation without any down-payment;

30. That upon initial payment, they were able to occupy the
purchased property for a period of at least three (3) years, and when

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Mr. Serrano left, Helen Serrano stayed therein until she eventually
left the same;

31. That when they left, no more payments were made to the
property, as testified to by the Accused:

“Atty. Bellosillo, Jr.: Ok, nang umalis sila, sila ba ay

nagpatuloy sa pagbabayad?

Witness: Hindi.6 ”

32. That this was unfortunate as the property purchased was a

rowhouse, and was infested by termites, to wit:

“Court: On what ground Sir? What is the

relationship of Estafa to the anay
at mga kabataang nagiistambay
doon?

Atty. Bellosillo, Jr.: The very reason your Honor, the

witness, they constructed the
house and the one who repaired
the house, the repaid should be
paid first before possession.

Court: Let us see the answer of the

witness. Okay, what is the answer?

Witness: Ang row house ho, dugtong

dugtong ang mga kahoy ng tatlong
pitak na bahay, noong wala hong
nakatira dito sa kanila at iniwan
nila ito, ang anay ho sa
kapitbahay, doon na ho
nagreklamo iyong tinatawag kong
Mr. and Mrs. Comia na kung baga
sa kuwan eh bigyan ko ng pansin
at ayusin.7”

33. That there were no issues with respect to the Private

Complainants leaving the property, however, the termite infestation
in their home has prompted the Accused to take action, considering
that if left unchecked it will spread to the two houses on its left;

6
Page 14, Transcript dated 19 February 2018
7
Page 16 to 17, Ibid.
7
 34. That the infestation was testified to by the witness Beatrice
Comia, who was living on the adjacent property;

35. That again, the property purchased by the Private Complainants

was a rowhouse, which shares a roof and party wall with an adjacent
house. Thus, repairs to be undertaken thereof is subject to the
provisions of the Civil Code, to wit:

“Article 662. The cost of repairs and construction of

party walls and the maintenance of fences, live hedges,
ditches, and drains owned in common, shall be borne
by all the owners of the lands or tenements
having the party wall in their favor, in proportion to
the right of each.

Nevertheless, any owner may exempt himself from

contributing to this charge by renouncing his part-
ownership, except when the party wall supports a building
belonging to him. (emphasis ours)”;

36. That thus, the Private Complainant is subject to the costs of

repairs of the house that he abandoned. It is the height of injustice to
make the Accused or the corporation liable, considering that the
Private Complainant left the property for almost a decade;

37. That thus, the Accused instructed his relatives to occupy the
property. It should be noted that the persons who stayed in the
property were not new owners, as they were simply relatives who are
instructed to stay therein;

38. That it should be noted that the Private Complainants refused

to settle their balance to the sellers. They never compensated the
Accused or the corporation for the expenses incurred when they left
the property;

39. That in any case, the Private Complainants alleged that they
were deprived of their ownership over the property because according
to them, the Accused refused to deliver the title to the Private
Complainants despite demand;

40. That this allegations from the Private Complainants seem to

overlook the fact that they abandoned the property they had not
completely paid, returned after several years, and refuses to shoulder
the repairs that they are liable for;
8
 41. That clearly, it is the height of injustice to hold the Accused
criminally liable for estafa and deceit, as he was simply a responsible
family member who took care of the business his father late father left
them. He clearly recognizing the Private Complainants ownership by
asking them to reimburse the payments they owed for repairs;

CONCLUSION

42. That summary, it is most respectfully submitted to the

Honorable Court that the Accused Serafin Zaldivia, Jr. cannot be
rightfully convicted of the charge of Estafa beyond reasonable doubt;

43. That clearly from the above-stated arguments, there is nothing

on record to establish that the Accused was solely responsible for
transacting the Private Complainants, and in fact this was shown
from the complaints filed before the prosecutor’s office;

44. That simply, the receipts show that the Accused was never fully
in control of the amounts deposited in this case. And he could not
have misappropriated said amounts to deceive the Private
Complainants in any way as to constitute Estafa under the Revised
Penal Code;

45. That there is also nothing to show that solely by himself. The
Private Complainants were transacting with several persons, and the
decisions involving the property were not solely executed by the
Accused alone;

46. That however, it is still submitted that the actions of the Private
Complainants should be taken into consideration. What was
undertaken by the Zaldivias was a mere response to the absence of
the Private Complainants, and were never deceitful nor criminal in
character;

47. That taking everything in consideration, the finding of guilt

beyond reasonable doubt against the Accused is clearly wanting and
in view of the foregoing premises, the Defense begs the indulgence of
this Honorable Court for another look and a kind reversal of its
Decision dated 22 October 2021.

PRAYER

WHEREFORE premises considered, it is most respectfully

prayed of this Honorable Court that it SET ASIDE its Decision dated
9
22 October 2021 and dismiss the criminal charge of Estafa against the
Accused Serafin Zaldivia Jr., and acquit him of said charges as well as
the civil liability thereof.

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

Pakil for Siniloan, Laguna, 30 November 2021.

ESGUERRA LAW OFFICE

Counsel for the Defendants
Pauline Bldg., 50 Tavera St., Pakil, Laguna
Tel. No. (049) 557-0231/Cel. No. 0922-8700457
[email protected]

PABLO M. ESGUERRA
Attorney’s Roll No. 36979
IBP No. 142914, issued 1-07-2021
PTR No. 8824641 issued 01-04-2021
MCLE Compliance No. VI-0014491

NICOLO JUSTIN P. CAGAYAT

Attorney’s Roll No. 71786
IBP No. 121078, issued 27-12-2020
PTR No. 8871142/Paete, Laguna/1-4-2021
MCLE Compliance No. VI-0019522
MCLE Compliance No. VII-0003645

With Conformity:

SERAFIN ZALDIVIA, JR.

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NOTICE OF HEARING

THE BRANCH CLERK OF COURT

Regional Trial Court
Branch 33
Siniloan, Laguna

ATTY. PABLO C. CASTILLO

No. 115, Gaiety Street, Better Living Subdivision
Parañaque City, Metro Manila

THE ASSISTANT PROVINCIAL PROSECUTOR

Office of the Assistant Provincial Prosecutor
Siniloan, Laguna

Greetings,

Please take notice that the undersigned counsel will submit the
foregoing “Motion for Reconsideration” for the kind consideration
and resolution of the Honorable Court on 10 December 2021, at 8:30
a.m. or as soon as the counsel and the matter may be heard.

NICOLO JUSTIN P. CAGAYAT

COPY FURNISHED

ATTY. PABLO C. CASTILLO

No. 115, Gaiety Street, Better Living Subdivision
Parañaque City, Metro Manila

THE ASSISTANT PROVINCIAL PROSECUTOR

Office of the Assistant Provincial Prosecutor
Siniloan, Laguna

EXPLANATION
(Pursuant to Section 11, Rule 13 of the 1997 Rules of Civil Procedure)

The foregoing Motion for Reconsideration is being filed and

served with this Honorable Court and to the opposing party by
registered mail due to distance and lack of sufficient personnel to
personally serve the same.

NICOLO JUSTIN P. CAGAYAT

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