ChanRobles Virtual law Library

[A.M. OCA IPI No. 04-2068-P.� April 27, 2005]

TABAG vs. PALOMAR

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated APR 27 2005.

AM OCA IPI No. 04-2068-P (Carmelita P. Tabag vs. Clerk of Court VI Shalane G. Palomar and Sheriff IV Julius G. Guiang, Sr.)

Considering the Report of the Office of the Court Administrator, to wit:

Received by this Office from the Office of the Deputy Ombudsman for Luzon is the COMPLAINT dated 4 October 2004 from Carmelita P. Tabag charging respondents Clerk of Court VI Shalane G. Palomar and Sheriff IV Julius G. Guiang, Sr. with Grave Misconduct (Violation of R.A. 3019).

Complainant Tabag is the owner of a certain property covered by TCT No. 292259 which she mortgaged to a certain Francisca Mananghaya. For complainant's failure to pay her loan, Mananghaya, through counsel, filed a Petition for Extra-judicial Foreclosure of the mortgaged property before the Office of the Clerk of Court, RTC, Tarlac City, the office of respondent Palomar.

On 16 August 2004, respondents Palomar and Guiang, Sr. issued a Notice of Extra-judicial Sale of the subject property scheduling the auction sale on 1 October 2004.

On 30 August 2004, complainant Tabag wrote a letter to the respondents informing the latter that the Extra-judicial Foreclosure is defective since she did not authorize the mortgagee to extra-judicially foreclose the subject property.

Commenting on the complaint against her, respondent Clerk of Court VI Shalane G. Palomar in her letter dated 25 January 2005 prays that the said complaint be dismissed "for being baseless, untrue and unfounded".

Respondent claims that she is the incumbent Clerk of Court of the Regional Trial Court of Tarlac City holding the position of Clerk of Court VI. She is also Ex-Officio Provincial Sheriff in the said court.

As Ex-Officio Provincial Sheriff, it is one of her duties to receive upon payment of the filing fee, applications for extra-judicial foreclosure and after examination of the documents submitted to determine whether applicants have complied with the requirements prescribed by law, to conduct public auctions.

Respondent Clerk of Court narrates that Foreclosure File No. 1486, the subject of the instant complaint against her was filed on 3 August 2003 and the same was assigned by raffle to Sheriff Guiang, Sr. The respondent Sheriff caused the preparation of the Notice of Extra-judicial Sale which was signed by her on 16 August 2004 setting the public auction on 1 October 2004. The requirements set forth by the law before the sale could be conducted were complied with and notices were sent to the applicant and the herein complainant. The same notices were posted and published in the manner required by the law.

On 31 August 2004, respondent Palomar received a copy of the Withdrawal of Extra-judicial Auction Sale of Mortgaged Property of Mortgagor Carmelita Tabag dated 30 August 2004, from the herein complainant. However, before the respondent Clerk of Court could answer said letter of withdrawal, complainant visited at her office claiming that she already made partial payments to the mortgagee hence, the latter had no right to foreclose the subject property and that the respondents should desist from conducting the public auction. Hearing the same from complainant, herein respondent advised the former to file an appropriate action before the court to ventilate her claim and to restrain their office from proceeding with the auction sale.

Respondent asserts that contrary to complainant's claim that the Extra-judicial Foreclosure was not authorized under the Real Estate Mortgage she executed with mortgagee Francisca Mananghaya, a perusal of the said mortgage contract shows that such authority or special power to foreclose was clearly stated in the said document.

In his COMMENT dated 26 January 2005, respondent Sheriff Julius G. Guiang, Sr. likewise prays for the dismissal of the instant complaint.

Echoing the earlier declarations of co-respondent Palomar relative to compliance with the requirements of the law before they conducted the subject foreclosure and auction, herein respondent sheriff alleges that on 31 August 2004 after receiving a copy of the Withdrawal of Extra-Judicial Sale of Mortgaged Property of Mortgagor, he sought the advise of respondent Palomar. Upon review of the matter, he was instructed by the Clerk of Court to proceed with the scheduled auction sale as there was no court order restraining the same. Thus, on 1 October 2004 the auction was conducted and the lone highest bidder was mortgagee Mananghaya who submitted a bid in the amount of P3,000.00. Thereafter, a Certificate of Sale was issued to the said bidder.

Respondent Guiang, Sr. adds that herein complainant never participated/witnessed the auction although she appeared before his office after the same was conducted on 1 October 2004.

EVALUATION : After a careful perusal of the records of this case, we believe that the complaint against the respondents should be dismissed.

It is evident from the records that the respondents were able to comply with the requirements prescribed by the law before they foreclosed and auctioned the subject property of the complainant. Appropriate filing fees were paid and sufficient notices were served to the applicant mortgagee as well as the herein complainant. Also, there was no court order that will effectively restrain the respondents from proceeding with the foreclosure and auction of the property. Thus, it can be said that when the respondents carried out the extra-judicial sale of the complainant's property on 1 October 2004, they were acting within the bounds of the law and were only performing their bounden duties as Ex-Officio Provincial Sheriff and impending Sheriff.

In the absence of evidence to the contrary, the presumption of regularity in the performance of duty remains in favor of the respondents.

RECOMMENDATION : Respectfully submitted for the consideration of the Honorable Court is our recommendation that the instant administrative complaint against respondents Clerk of Court VI Shalane G. Palomar and Sheriff IV Julius G. Guiang, Sr. be DISMISSED for lack of merit.

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

ACCORDINGLY, the administrative complaint against Clerk of Court VI Shalane G. Palomar and Sheriff IV Julius G. Guiang, Sr. is DISMISSED.

SO ORDERED.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court

Back to Home | Back to Main

CLICK HERE FOR THE LATEST SUPREME COURT JURISPRUDENCE