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A.M. OCA IPI No. 06-2387-P. July 12, 2006]

ANTONIO S. LIU v. CHRISTOPHER NORMAN C. PUBLICO, SHERIFF IV, RTC, BRANCH 31, MANILA

First Division

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated JULY 12, 2006

A.M. OCA IPI No. 06-2387-P (Antonio S. Liu v. Christopher Norman C. Publico, Sheriff IV, RTC, Branch 31, em>Manila)

Acting on the Report of the Office of the Court Administrator (OCA) dated May 18, 2006, to wit:

1.������ AFFIDAVIT-COMPLAINT (with Annexes) dated 6 February 2006 of Antonio S. Liu charging Christopher Norman C. Publico, Sheriff IV, RTC, Branch 31, Manila with Dereliction of Duly relative to Extra Judicial Foreclosure No. 04-2191 entitled "Equitable Savings Bank v. Sps. Sy Siok Hun and Antonio Liu."

Complainant, who is one of the mortgagor-respondents in the aforecited extra judicial foreclosure proceeding, narrates that after the extra judicial sale of the mortgaged property, he wrote respondent on 7 November 2005 about his intention to redeem the foreclosed property. On 6 December 2005, he again wrote respondent that he already redeemed the foreclosed property by paying the redemption price of P1,040,543.14 with the Office of the Clerk of Court (OCC)-RTC Manila on 5 December 2005, and thus requested for the issuance of the certificate of redemption so it can be annotated on the title of the foreclosed property. Receiving no response, he wrote respondent on 16 December 2005 strongly reiterating his request for the certificate of redemption.

Complainant alleges that instead of issuing the certificate of redemption, which he contends is a mere ministerial duty, respondent instead sent him a letter dated 16 December 2005 explaining that he (respondent) could not issue the deed of redemption as "he is not in a position to do so." He maintains that while respondent admits in his letter that it is his ministerial duty to prepare the certificate to be signed by the corresponding authorities yet respondent refused to do so and instead exercised discretion, which is clearly judicial, by interpreting provisions of law like Section 47 of the General Banking Law of 2000 in relation to Section 28 or Rule 39, 1997 Rules of Civil Procedure. Moreover, he contends that respondent further exercised discretion by concluding that what was tendered by him (complainant) was insufficient per statement of account from mortgagee-bank Equitable Savings Bank (ESB). He contends otherwise as he already paid the bid price plus all legal interest and taxes due. Besides, he maintains that the extra-judicial foreclosure was conducted pursuant to Act No. 3135 and not under the General Banking Law of 2000. Moreover, he posits that Section 28 of Rule 39, 1997 Rules of Civil Procedure does not provide that it be construed in relation to other laws. Thus, he concludes that the refusal of respondent to issue the certificate of redemption which is purely ministerial is a clear dereliction of duty as an officer of the Court.

2.������ In his COMMENT (with Annexes) dated 9 March 2005 respondent denies the allegations against him. According to him, after receiving complainant's 7 November 2005 letter, he did not know the exact expenses incurred relative to the foreclosure sale so he sent on 8 November 2005 a letter-request to ESB requesting for a computation of the redemption price for the foreclosed property. On 14 November 2005, he received a copy of the Statement of Account from ESB which indicated the outstanding balance of P1,851,002.32 as of 11 November 2005 and was informed that a copy thereof was received on 11 November 2005 at 11:35 a.m. by complainant as per complainant's receipt-signature.

Respondent contends that despite knowledge of the outstanding balance per ESB statement complainant, without informing ESB, deposited with the Cashier of the OCC-RTC Manila the amount of P1,040,543.14 as redemption price. Thereafter, he alleges that complainant accompanied by the Sheriff of RTC-Br. 1 approached him and asked for the issuance of the deed of redemption. He posits that on 7 December 2005 he prepared the Deed of Redemption and had it signed by the Clerk of Court and Ex-Officio Sheriff, Atty. Jennifer dela Cruz-Buendia. However, according to him, before bringing the deed to Executive Judge Antonio E. Eugenio, Jr. for signature and approval, he informed ESB on 8 December 2005 of complainant's deposit or payment. On 13 December 2005, he received the comment of ESB asserting that the payment should be not less than P1,932,506.59 and complainant's payment is not acceptable for being substantially less than the outstanding balance. Thus, with the issue of the price of redemption as contested by ESB, he deemed it appropriate to hold in abeyance the approval of the deed of redemption and was constrained to file on 16 December 2005 his report with the Court, copy furnished all parties.

Respondent denies interpreting any law, much less exercising discretion anent holding in abeyance the approval of the deed of redemption as he merely applied the Rules as provided in page 62 of the sheriff's manual relative to the redemption price. In fine, he points that it was complainant who asked for the computation of the redemption price and despite receiving the statement of account from ESB still paid or deposited an amount substantially less than the outstanding balance, and thus alleges that complainant is misleading the Court by omitting to mention such facts in the instant complaint.

In his REPLY dated 16 March 2006, complainant takes exception to respondent's contention that it should be ESB who should determine the redemption price as it is the OCC-RTC Manila which conducted the foreclosure proceedings and is thus tasked to determine the redemption price. He posits that it is not the mortgagee-bank who should determine the redemption price as the redemptor is not required to address the query on the redemption price to the mortgagee but to the OCC which conducted the foreclosure proceedings. In the instant case, he argues that if the determination is left with mortgagee-bank ESB it is so inequitable as the redemption price in the statement of account was bloated with the astronomical sum of P322,633.57 by way of attorney's fees for the extra-judicial proceeding. He asserts that before tendering his payment of the redemption price, he had it computed by the OCC-RTC Manila which enjoys the presumption of regularity.

Complainant thus alleges that respondent is taking the cudgels for ESB by demanding that he pay the redemption price as computed by ESB, completely ignoring the computation of the OCC-RTC Manila, and in concluding that his payment is insufficient.

4.������ In his REJOINDER (with Annexes) dated 29 March 2006, respondent asserts that as sheriff, he is in-charge only of the foreclosure proceedings and that it is mortgagee-bank ESB which has the data of the total obligation of the mortgagors. He thus posits that it is precisely upon complainant's request for the redemption price that he notified ESB. He maintains that Clerk of Court Atty. Buendia told him that the bank's statement of account is the basis for the redemption price. Moreover, he contends that the crux of the matter is whether the deposit or payment made by complainant is valid as mortgagee-bank ESB refused to accept it considering that it was substantially insufficient. Thus, with the foregoing facts he could not issue the deed of redemption; and he informed the Court through his report of 15 December 2005 about the insufficiency of complainant's payment.

Together with his Rejoinder, respondent submitted a Letter dated 29 March 2006 addressed to complainant explaining in gist what he narrated in his rejoinder and why the deed of redemption could not be issued on the ground that complainant's payment was contested by mortgagee-bank ESB.

5.������ In his COMMENT (To Respondent's Rejoinder) dated 6 April 2006, complainant asserts that given the series of events, it must be noted that respondent did not answer his 7 November 2005 letter but instead informed ESB about it. Thus, he maintains that with the deliberate failure of respondent to heed his request coupled with the fast approaching deadline of the period for redemption, he was constrained to have OCC-RTC Manila compute the redemption price and he paid it on 5 December 2005. When respondent failed to heed his 6 December 2005 letter he wrote again on 16 December 2005 which was answered by respondent. However, he pointed out that respondent's 16 December 2005 letter deliberately omitted to mention that Clerk of Court Atty. Buendia already signed the certificate of redemption as early as 7 December 2005, which was confirmed by Atty. Buendia's 24 March 2006 letter to his query. Thus, he concludes that given the admission by Atty. Buendia, it is clear that respondent is manipulating the process for the issuance of the deed of redemption to his great damage and prejudice considering that the redemption period expires on 5 January 2006.

Evaluation: The complaint must be dismissed. The allegations in the instant complaint have no legal basis. First, respondent is correct in relying on the sheriffs' manual "A Handbook for Sheriffs" which, considering that mortgagee is a banking institution, properly applied Section 78 of the General Banking Law and pursuant thereto respondent deferred to mortgagee-bank ESB for the redemption price. It is thus clear that "the redemptioner should make an actual tender in good faith of the full amount of the purchase price xxx xxx, i.e., the amount fixed by the court in the order of execution or the amount due under the mortgage deed, as the case may be, with interest thereon at the rate specified in the mortgage, and all the costs, and judicial and other expenses incurred by the bank or institution concerned by reason of the execution and sale and as a result of the custody of said property less the income received from the property."

Second, given the issue of the sufficiency of complainant's deposit or payment vis-�-vis what mortgagee-bank ESB stated in its statement of account, respondent cannot be expected to pursue the issuance of the certificate of redemption. Besides, given the fact that complainant received ESB's statement of account, respondent could not be faulted in informing ESB about the payment or deposit of complainant vis-�-vis the amount specified in the statement of account.

Third, while it is true that the deed of redemption was made by respondent and signed by Ex-Officio Sheriff and Clerk of Court Atty. Buendia on 7 December 2005 considering, however, the issue of the redemption price, respondent was prudent in informing the Court about the issue of the "insufficiency" of complainant's deposit rather than have RTC Exec. Judge Eugenio, Jr. sign or approve the deed of redemption.

Fourth, we find respondent's explanation sufficient in not mentioning to complainant the fact that Atty. Buendia already signed the deed as it is beside the point considering that respondent did not submit it to Exec. Judge Eugenio, Jr. for signature and approval due to the issue of the redemption price. Besides, he copy furnished complainant of his 15 December 2005 report.

Lastly, in case of disagreement over the redemption price, as in the instant case, complainant-redemptioner may preserve his right through judicial action instituted within the one-year period of redemption. He was made aware on 11 November 2005 of the redemption price through the statement of account given by ESB which is substantially greater than what he paid. Complainant therefore must contest the redemption price in court and not resort to an administrative complaint.

RECOMMENDATION: Respectfully submitted for the consideration of the Honorable Court is our recommendation that the instant administrative complaint against Sheriff IV Christopher Norman C. Publico be DISMISSED for lack of merit. [1] cralaw

The Court concurs with the foregoing recommendation.

It is settled that in administrative proceedings, the complainant has the burden of proving, by substantial evidence, the allegations in his complaint. Such evidence must be competent and derived from direct knowledge. [2] cralaw Charges based on mere conjectures and suppositions cannot be given credence. [3] cralaw Thus, if in the absence of contrary evidence, what will prevail is the presumption that a sheriff has regularly performed his official duty. [4] cralaw

Indeed, sheriffs are "ministerial officers" who are agents of the law and not of the parties, neither of the creditor nor of the purchaser at a sale conducted by him. [5] cralaw A purely ministerial act or duty is one which an officer or tribunal performs in the context of a given set of facts, in a prescribed manner and without regard to the exercise of his own judgment upon the propriety or impropriety of the act done. [6] cralaw In this case, Sheriff Publico was merely performing his ministerial duty when he refused to issue a certificate of redemption to the complainant.

CONSIDERING THE FOREGOING, the Court resolves to DISMISS the instant administrative complaint against Christopher Norman C. Publico for lack of merit.

Very truly yours,

(Sgd.) ENRIQUETA ESGUERRA-VIDAL
Clerk of Court

First Division


Endnotes:

[1] cralaw Rollo , pp. 75-78.

[2] cralaw See Urgent Appeal/Petition for Immediate Suspension & Dismissal of Judge Legaspi , 453 Phil. 459 (2003).

[3] cralaw Cortes v. Chico-Nazario , A.M. No. SB-04-11-J, February 13, 2004 , 422 SCRA 541, 550.

[4] cralaw Salcedo v. Caguioa, A.M. No. MTJ-00-1328, February 11, 2004 , 422 SCRA 426, 433.

[5] cralaw Sismaet v. Sabas , A.M. No. P-03-1680, May 27, 2004 , 429 SCRA 241, 248, citing the 2002 Revised Manual for Clerks of Court.

[6] cralaw Sismaet v. Sabas , supra, at 247-248.


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