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A.M. OCA IPI No. 05-2141-P. October 23, 2006]

CONSOLACION C. PILI-MARCOS v. ROBERTO U. ONZO, SHERIFF IV, RTC, BRANCH 24, CABANATUAN CITY

First Division

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated OCT. 23, 2006 .

A.M. OCA IPI No. 05-2141-P (Consolacion C. Pili-Marcos v. Roberto U. Onzo, Sheriff IV, RTC, Branch 24, Cabanatuan City)

The instant administrative matter stemmed from the verified Complaint [1] cralaw dated February 21, 2005 filed by Consolacion C. Pili-Marcos charging respondent Sheriff Roberto U. Onzo with gross neglect of duty and conduct unbecoming a public official relative to Civil Case No. 4814 entitled Soledad P. Galang and Dr. Gregorio Galang v. Tierracon Realty Corp. and Consolacion C. Pili-Marcos for collection of lease rentals with urgent prayer for writ of preliminary attachment and damages.

Complainant, the President of Tierracon Realty Corporation, alleged that the said case filed against her was for the collection of alleged arrears in lease rentals amounting to P762,617.00. On October 28, 2004, a Writ of Preliminary Attachment [2] cralaw was issued by the RTC, Branch 24, Cabanatuan City against her properties not otherwise exempt from execution. On November 4, 2004, respondent Sheriff implemented the writ by attaching 16 parcels of land registered in the name of the realty corporation. A Notice of Levy [3] cralaw was filed with the Register of Deeds of Cabanatuan City, and the attachment covering the said parcels of land was annotated on the respective titles of the properties.

According to complainant, the attachment made by respondent on the 16 parcels of land was "highly irregular, tainted with malice and bad faith, and had been designed and tailored to cause damage and injury" due to the following reasons:

a) The amount sought to be recovered by the plaintiffs in the said case amounts only to SEVEN HUNDRED SIXTY-TWO THOUSAND SIX HUNDRED SEVENTEEN (Php762,617.00) pesos representing alleged rentals in arrears while the market value of the house and lot units (16 parcels) which had been attached by respondent sheriff amounts to NINE MILLION SIX HUNDRED SEVENTY-TWO THOUSAND NINE HUNDRED THIRTY (Php9,672,930.00). Verily, a single housing unit will suffice to secure plaintiffs' claim;

b) The concrete houses presently built and standing on these sixteen (16) parcels of land form part of defendant TIERRACON REALTY CORP.'S housing project as the TIERRACON SUBDIVISION 1; x x x

c) These low-cost residential units [have] already been sold by defendant corporation to low income earners (by way of Contracts to Sell) at prices ranging from Php500,000.00 to Php700,000.00 depending on the size and location of the lots. However, the land titles remain registered under the name of the defendant corporation considering that these housing units have not yet been fully paid by the buyers. An examination of the herein attached pictures taken of the residential units would show that [the] same are presently occupied by the buyers who already made substantial improvements thereon;

d) The gross disparity between plaintiffs' monetary claim and the market value of the attached properties is clearly undeniable. There can be no other plausible explanation for the disparity other than the fact that respondent Deputy Sheriff Onzo proceeded with the attachment without even verifying the present status or conditions of the properties to be attached. [4] cralaw

Complainant further claimed that because of the excessive levy on the attachment done by respondent, the owners of the housing units filed charges in court against her, and as a consequence, she suffered damages; she was likewise being lambasted in the different radio stations in the area because of what happened.

In his Comment [5] cralaw dated April 6, 2005, respondent claimed that he exercised due care in attaching the properties of the defendants. He asserted that the value of the properties did not even exceed the amount being claimed by the plaintiffs in Civil Case No. 4814; while plaintiffs' claim amounts to P762,617.00, the value of the attached properties, based on the Tax Declarations/Market Value on file with the Office of the City Assessor, was only about P123,840.00. He further alleged that he regularly performed his official duty with utmost diligence and acted in accordance with his sworn duty as a sheriff and officer of the court. He thus prayed that the instant harassment complaint against him be dismissed.

In her Reply dated May 18, 2005, complainant argued as the pictures [6] cralaw of the 16 housing units will show, one or two of such units would be more than enough to answer the plaintiff's claim in the event that the court would render a decision favorable to them. In fact, the Home Development Mutual Fund appraised the residential lots at P2,850.00 per square meter, and the housing units at P348,327.00 on a 35.80 square meter floor area to P432,777.00 on a 51.70 square meter floor area. [7] cralaw

The complainant added that at the time the respondent Sheriff served the Notice of Levy with the Register of Deeds of Cabanatuan City, he was well aware that there were housing units with occupants on the subject properties. The tax declarations likewise used by the respondent Sheriff in assessing the market value of the properties were not reflective of its actual value. Their respective zonal values should be considered.

In the Resolution dated August 31, 2005, the Court referred the administrative complaint to the Executive Judge of RTC, Cabanatuan City, for investigation, report and recommendation. Executive Judge Rodrigo Caspillo submitted his Final Report and Recommendation dated January 11, 2006, stating that respondent Sheriff "failed to comply with the standards required of a Sheriff in the performance of his duties when he neglected to verify" the status of properties before levying on them. The Executive Judge recommended that respondent should be meted a fine of One Thousand Pesos (P1,000.00).

In its Report dated August 14, 2006, however, the Office of the Court Administrator (OCA) made the following observation:

The pivotal issue in this case is whether or not the sheriff can be held liable for attaching several properties of the defendant/complainant and relying on the valuation of the properties based on the tax declarations secured from the City Assessors Office of Cabanatuan City.

Complainant maintains that respondent sheriff committed gross neglect of duty in attaching the sixteen (16) titles of the complainant without considering the present status of the levied property, i.e. 1) that there were several concrete houses erected on the properties levied; 2) that some of the sixteen (16) titles levied are now owned by different owners as it was sold by complainant (through Tierracon Realty Corp.) or under loan agreement with GSIS and Home Development Mutual Fund.

Undersigned believes that herein respondent sheriff cannot be considered to have grossly neglected his duty when he preliminarily attached the sixteen (16) titles by way of levy of the properties of the defendant/complainant. In the first place, it is not the duty of the sheriff, in a preliminary attachment, to go beyond the title of the properties and/or tax declaration to see the status thereof, whether or not there was a concrete house already erected thereon, or that there is significant increase of the valuation of the property. It is not the duty of the sheriff to determine the present fair market value of the properties he is attaching. The sheriff can safely rely on the titles of the properties as to the ownership thereof and/or the valuation of the property as reflected on the tax declaration of the properties as the true value thereof. On the other hand, it is the duty of the party against whom the writ was directed to petition or ask the court to release some of the properties already attached when there are already sufficient properties to cover the amount being demanded therefrom.

What is important is that the sheriff, in attaching the property, took the necessary precaution in attaching only those properties covered by the writ. In this case, the fact that the properties attached are already owned by different persons, has not been properly registered, said transfer not having been annotated or recorded at the back of the title.

x x x [R]espondent was not in bad faith when he relied solely on the title of the properties all under the name of the defendant/complainant, or on the tax declarations covering the properties in proceeding with the levy. It should be borne in mind that the writ which respondent implemented is a writ of preliminary attachment under Rule 57 of the Rules of Court. Preliminary attachment is resorted to at the commencement of the action or at any time before entry of judgment, for the temporary seizure of the property of the adverse party.

The chief purpose of the remedy of attachment is to secure a contingent line on defendant's property until plaintiff can, by appropriate proceedings, obtain a judgment and have such property applied to its satisfaction, or to make some provision for unsecured debts in cases where the means of satisfaction thereof are liable to be removed beyond the jurisdiction, or improperly disposed of or concealed, or otherwise placed beyond the reach of creditors. (Spouses Salgado v. Court of Appeals, No. L-55381, March 26, 1984, 128 SCRA 395; Chemphil Export and Import Corporation (CEIC) v. Court of Appeals, G.R. Nos. 112438-39, December 12, 1995, 251 SCRA 257, note 286).

If defendant believes that the property attached by the sheriff was in excess of the value of what was being sought to be collected by the plaintiff, he or she has several available remedies; 1) to request the attaching court to discharge the other properties as one or some of the properties are enough to cover the amount being sought to be recovered; or 2) file a counter-bond sufficient to satisfy the applicant's demand. Complainant may even ask the court to release some of the subject properties as they are not anymore properties of the complainant's corporation. In fact, under Sec. 20 of Rule 57 of the Rules of Court, defendant/complainant may even claim from the attaching party damages on account of improper or excessive attachments. Verily, there are several alternative immediate remedies available which can be resorted to by the defendant/complainant and they are all judicial and not administrative in character.

If anyone is in bad faith, it is the complainant who, without seeking the intervention of the issuing court, decided to file an administrative case against the respondent sheriff. Complainant herein is demanding too much of the x x x respondent by asking the latter to discharge some of the properties when sheriffs have no discretion to do so. If complainant herself does not know which of the attached properties were already sold, as it appears that the sale or conditional sale of the properties were not annotated at the back of the title for reasons known only to the complainant and her buyers, all the more reason that respondent cannot be blamed for attaching properties still in the name of the complainant. Furthermore, the buyers themselves have a remedy under the Rules (Sec. 14, Rule 57) to ask the court to excuse their properties from being attached, that is, to file a third-party claim.

Complainant blames respondent sheriff for her being dragged in court by the owners of the housing units being attached. Complainant should blame herself and her buyers for their failure to annotate or transfer the titles in their names. If there was damaged (sic) caused to the complainant by the attachment of the properties, the fault lies with her and to respondent sheriff.

The Court upholds the findings of the OCA, and rules that respondent Sheriff is not administratively liable.

As correctly pointed out by the OCA, a party who feels aggrieved by the issuance of a writ of attachment has several remedies to choose from. Under Section 13, Rule 57 of the Revised Rules of Court, such party may file a motion in the court in which the action is pending and seek to set aside or discharge the attachment on the ground that the same was improperly or irregularly issued or enforced, or that the bond is insufficient. [8] cralaw Section 14 of the same Rule, on the other hand, sets forth the procedure to assail the writ where the property is claimed by a third person:

SEC. 14. Proceedings where property claimed by third person. - If the property attached is claimed by any person other than the party against whom attachment had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds of such right or title, and serves such affidavit upon the sheriff while the latter has possession of the attached property, and a copy thereof upon the attaching party, the sheriff shall not be bound to keep the property under attachment, unless the attaching party or his agent, on demand of the sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied upon. In case of disagreement as to such value, the same shall be decided by the court issuing the writ of attachment. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond.

The sheriff shall not be liable for damages for the taking or keeping of such property, to any such third-party claimant, if such bond shall be filed. Nothing therein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the attaching party from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or separate action.

When the writ of attachment is issued in favor of the Republic of the Philippines, or any other officer duly representing it, the filing of such bond shall not be required, and in case the sheriff is sued for damages as a result of the attachment, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose.

The Court notes that neither complainant nor any third party filed the necessary motions in court to assail either the issuance of the writ or the manner of its execution. Indeed, the filing of an administrative complaint against a court employee is not the proper remedy where judicial recourse is still available.

Moreover, the rule is that when a writ is placed in the hands of a sheriff, it is his duty to execute it pursuant to its mandate. Such duty is ministerial, and one which he must accomplish as early as possible. [9] cralaw A ministerial officer performs the duties of the office in the context of a given set of facts, in a prescribed manner and without regard to the exercise of judgment upon the propriety or impropriety of the act done. [10] cralaw Thus, the order of the court must be executed strictly to the letter, leaving the sheriff with no discretion whether to execute the judgment or not. [11] cralaw

In the instant case, respondent Sheriff was merely performing his ministerial duty to implement the writ of preliminary attachment issued by the RTC. He cannot be faulted for relying on the tax declarations covering the properties, indicating assessed values way below that claimed by complainant. The records also show that the attached properties are still registered under the name of Tierracon Realty Corporation.

CONSIDERING THE FOREGOING, the Court resolves to DISMISS the complaint against Roberto U. Onzo for lack of merit.

Very truly yours,

(Sgd.) ENRIQUETA ESGUERRA-VIDAL
Clerk of Court

First Division


Endnotes:

[1] cralaw Rollo, pp. 1-4.

[2] cralaw Id. at 5.

[3] cralaw Id. at 10-13.

[4] cralaw Id. at 2-3.

[5] cralaw Id. at 33-35.

[6] cralaw Id. at 62-70.

[7] cralaw Id. at 71.

[8] cralaw The provision reads in full:

SEC. 13. Discharge of attachment on other grounds. - The party whose property has been ordered attached may file a motion with the court in which the action is pending, before or after levy or even after the release of the attached property, for an order to set aside or discharge the attachment on the ground that the same was improperly or irregularly issued or enforced, or that the bond is insufficient. If the attachment is excessive, the discharge shall be limited to the excess. If the motion be made on affidavits on the part of the movant but not otherwise, the attaching party may oppose the motion by counter-affidavits or other evidence in addition to that on which the attachment was made. After due notice and hearing, the court shall order the setting aside or the corresponding discharge of the attachment if it appears that it was improperly or irregularly issued or enforced, or that the bond is insufficient, or that the attachment is excessive, and the defect is not cured forthwith.

[9] cralaw Rizal Commercial Banking Corporation v. Quilantang, 413 Phil. 13, 19 (2001).

[10] cralaw Sismaet v. Sabas, A.M. No. P-03-1680, May 27, 2004, 429 SCRA 241, 247-248.

[11] cralaw Sayson v. Luna, A.M. No. P-04-1829, July 7, 2004, 433 SCRA 502, 505.


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