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[A.M. OCA IPI No. 03-1856-RTJ. July 12, 2004]

P.R. BUILDERS DEVELOPERS & MANAGERS, INC. vs. HOW

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUL 12 2004 .

A.M. OCA IPI No. 03-1856-RTJ (P.R. Builders Developers & Managers, Inc., represented by its President, Pablito T. Villarin vs. Judge Rolando G. How, Branch 275, RTC-Para�aque City .)

Considering the Report dated April 28, 2004 of the Office of the Court Administrator, to wit:

. . .

Filed with this Court is a Verified Letter-Complaint dated 3 September 2003 (with enclosures) of P.R. Builders Developers & Managers, Inc. represented by its President Pablito Villarin charging respondent Judge Rolando G. How, RTC, Branch 275, Para�aque City with manifest partiality, evident bad faith, and inexcusable negligence relative to Civil Case No. 02-0415 entitled "P.R. Builders Developers and Managers, Inc. vs. Export and Industry Bank, Inc., formerly Urban Bank, Inc., et al." for Injunction with Prayer for Writ of Preliminary Injunction and Temporary Restraining Order.

.

Complainant is the president of the plaintiff in the above-cited case. He alleges that his company filed the case to stop the extrajudicial foreclosure of mortgage filed by the defendant Export and Industry Bank/Urban Bank filed with Office of the Clerk of Court, RTC, Para�aque City based on a Promissory Note for P103,500.00 which he claimed to be falsified document.

On 14 July 2003, after the presentation of evidence, respondent judge gave both parties thirty (30) days to file their respective memoranda. However, on the same day, the defendant bank surprisingly manifested its intention to immediately re-schedule the sale of the foreclosed properties, albeit without prejudice to the resolution of the pending incident, and a readiness to absorb possible wasted publication expenses.

As the extrajudicial sale was scheduled for 25 August 2003, plaintiff requested that the incident be resolved before the scheduled sale to provide them ample time to seek further remedies in the event of a negative order. Hence, plaintiff filed its memorandum as early as 8 August 2003. Defendant bank only filed its memorandum on 15 August 2003, two (2) days after the thirty- day period to file the same.

On 15 August 2003, respondent issued an Order denying plaintiff's application for a writ of preliminary injunction.

Complainant avers that the Order dated 14 July 2003 of respondent Judge was deliberately mailed to their counsel only on 14 August 2003, thus, the same was received on 18 August 2003.

In the morning of 22 August 2003, a Friday and three (3) days away from the scheduled extra judicial sale on 25 August 2003, they frantically followed the status of the unresolved incident with the court personnel. They were told that respondent had not yet issued an order and that the record of the case was locked in the chambers of the respondent. Hence, in the afternoon of the same day, they filed an urgent motion to maintain status quo pending the resolution of the incident. However, on the same day, their counsel received by mail a copy of the order denying their application for preliminary injunction. The 19-page order was dated 15 August 2003, the same day the defendant filed its memorandum.

Complainant alleges that the copy of the said order was deliberately mailed only on 18 August 2003 so that it would be received by their counsel on Friday, 22 August 2003, three (3) days away from the scheduled sale on Monday, 25 August 2003.

He asserts that the foregoing indicates respondent's partiality and evident bad faith, to wit: (a) Respondent Judge How has already prejudged the case as early as 14 July 2003; (b) the submission of the required memorandum by the parties was a mere formality; (c) the order dated 15 August 2003 was prepared even before the receipt of the defendant bank's memorandum; (d) respondent judge adopted in toto the bank's arguments about the non-filing of criminal complaint by their company against the bank and the P5 million documents as evidence of the P103,500.00 alleged restructured loan; (e) that their memorandum was not read or considered at all in the preparation of the order; and (f) the release of the order was timed to deprive them of any remedy to stop the 25 August 2003 sale.

.

To justify his order, respondent judge fabricated and/or concocted issues in the subject case, as follows:

1.����� He said that the issue in the subject case was whether their signatures in the Promissory Note were genuine or forged. The genuineness of their signatures in the promissory note is not an issue;

2.����� He said that the obligation of the bank to their company is not supported by documentary evidence. By ruling so, he grossly ignored, disregarded or overlooked at least three documentary evidence of said obligation. These documents came from the bank and part of the record of the case;

3.����� He ruled that the ante-dating and post dating of documents are regular and acceptable; and

4.����� He declared that there was no rejection on the part of the plaintiff of the letter advice/request of the bank despite the fact that there was no signature on top of the typewritten name Pablito T. Villarin and below the word conformity in the letter and the admission by the bank's witness that the letter is not found in the bank thus sustaining plaintiffs position that it never returned the letter to the bank as requested.

From the foregoing, complainant prays that respondent judge be dismissed from the service.

In his Comment dated 14 October 2003, respondent Judge Rolando G. How denies the allegations in the complaint and prays for its dismissal for being baseless and false.

He explains that the application for preliminary injunction was filed by the complainant on 4 October 2002. A temporary restraining order (TRO) was issued in favor of the complainant. The TRO lasted for almost 10 months (upon agreement of the parties) because the parties have several witnesses to present and they requested that they be allowed to present all their evidence. The petition was heard for more than nine (9) months and was resolved on the thirty-second day after the hearing was completed. He honestly believes that he did not commit any procedural or administrative error in resolving the petition.

In refutation of complainant's accusations, respondent Judge How avers as follows:

1.������ The order dated 14 July 2003, directing the parties to submit their respective memorandum, was dictated in open court in the presence of Attys. Eulalio Ventura and Herminio Morelos, counsels for the complainant and Atty. Emmanuel Silva, counsel for Export and Industry Bank. They were already informed beforehand of this order prior to their receipt thereof. The release of the order is the duty of the civil-in-charge and he has no participation in the mailing thereof;

2.������ The republication of the notice of foreclosure sale of the mortgage property was agreed upon by the parties, through their lawyers. He did not know the date of the republication. The scheduling of the sale was made in the Office of the Clerk of Court, RTC, Para�aque City and he was not furnished with the record or informed of the date of sale;

3.������ The claims of the complainant that he frantically followed the status of the case on 22 August 2003 and that they filed a motion to maintain status quo are utterly false and outright lie. On 22 August 2003, the court was closed because it was declared by President Arroyo as a special holiday in lieu of 21 August 2003. His allegation that he (respondent) had not resolved the petition on that day was likewise untrue because as of 15 August 2003, he has already issued an order denying the petition and that order was mailed to the parties on 18 August 2003;

4.������ He has no knowledge that the questioned order, which was mailed on 18 August 2003, would be received by the complainant's counsel on 22 August 2003. He did not know that a court order if mailed today will be received by the lawyers within three (3) days. It is his experience that notices, orders and other court processes which are mailed take about a week or two before they are received by the addressee;

5.������ It is not true that he treated the complainant's memorandum as mere formality. As soon as he received the memorandum filed by P.R. Builders, he started evaluating the case. He read and studied the notes he took during the hearing of the subject case vis a vis the evidence presented by the parties. He received the memorandum filed by the defendant bank in the morning of 15 August 2003. He read it also. But on that day, he had already drafted and prepared the order based on his notes and the evidence. After a careful consideration of the facts and the evidence presented by the parties, he found that the evidence submitted by the defendant bank is more convincing. The defenses of the complainant are mostly supported by arguments and contentions which are not concrete evidence;

6.������ The accusation that he adopted or copied en toto the arguments of the bank is baseless. Even if his order dated 15 August 2003 would be read side by side with the memorandum of the bank, it could gleaned that his order is based on the evidence presented by the parties;

7.������ The imputation that he had fabricated or concocted the following issues in the subject case was baseless and false:

a. whether or not the signatures of Mr. Villarin (President of P.R. Builders) were genuine or forged?

In his evaluation of the subject case, he found that it was an issue or significantly related to the issues raised by P.R. Builders that the promissory note which was the basis for the extrajudicial foreclosure was forged.

b. what he had stated in the questioned order regarding the ante-dating or postdating of the promissory note is as follows:

"The plaintiff's other contention that Pablito T. Villarin could not have signed the Promissory Note for while it was dated February 1, 1999 it was still negotiated on February 12, 1999 was explained by Atty. Bejasa who said that February 1, 1999 was the date the loan took effect . or the interest started to run while February 12, was the date of the signing of the Promissory Note. This Court does not find the difference in the date of the execution of the Promissory Note and the date of its effectivity unusual. This practice of having the contract signing several days after the date of effectivity of the loan does not make the contract illegal, fraudulent or void, as they are sometime done purposely for convenience."

c. Regarding the letter advice, the following is his ruling:

"Plaintiffs claim that it rejected the Letter Advice (Exhibit B) of the bank about the proposed restructured loan of P103,500.00 is belied by the signature appearing therein of Enrico C. Baluyot, its Vice-President. The absence of the signature of Pablito T. Villarin in that letter advice does not ipso facto show that it was rejected. There is no evidence presented showing that plaintiff had categorically rejected the letter advice. And contrary to the plaintiffs claim that the absence of the signature of Pablito T. Villarin is indicative of its rejection, there is another document such as the promissory note (Exhibit 9) which contains the signature alone of Enrico C. Baluyot but the authenticity of said document was not questioned by the plaintiff."

Respondent Judge maintains that the questioned order is purely based on the documentary and testimonial evidence presented by the parties. If the complainant or his counsel, Attys. Ventura and Morelos disagree with his ruling, they should have availed of the remedy of certiorari under the Rules of Court and should have not filed the present administrative complaint.

After a careful review of the records of the case, it is very evident that complainant has not established his charges against respondent judge.

The facts of the case do not show any improper motive, bad faith or malice on the part of the respondent. Moreover, the issuance of his Order dated 15 August 2003, was done by him in the exercise of judicial discretion that may not be assailed in an administrative proceeding. If complainant believes that the issuance of said order is highly irregular then he should have pursued the proper judicial remedies available to him under the Rules of Court.

Well settled is the rule that the acts of a judge done in the exercise of his judicial discretion are not the proper subjects of an administrative action. An administrative complaint is not a valid substitute for a judicial action (Lumibao vs. Judge Panal, A.M. No. MTJ-991237, 25 November 1999).

The charge of manifest bias and partiality is likewise bereft of merit. The records show that complainant failed to prove his allegations that respondent judge is biased against his company (plaintiff) and partial to the defendant bank. He only made bare allegations and was unable to adduce evidence in support thereof. Mere suspicion that a judge is partial to one of the parties is not enough to prove that a judge is biased in favor of a certain party (Gonzales vs. Bersamino, 254 SCRA 652). Moreover, complainant should have filed at the start of the trial a motion to inhibit respondent if he truly believes that the respondent could not handle the case with utmost impartiality and should not raise this matter for the first time in this administrative complaint.

and finding the evaluation and recommendation therein to be in accord with law and the facts of the case, the Court hereby approves and adopts the same.

ACCORDINGLY, the instant administrative complaint against Judge Rolando G. How is DISMISSED for being judicial in nature and for lack of merit.

SO ORDERED.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court

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