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[ A.M. No. OCA-IPI-98-462-P. March 13, 2000]

RODOLFO VILLANUEVA, et al. vs. RODELIO BUENVIAJE

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated MAR 13 2000.

A.M. No. OCA-IPI-98-462-P (Rodolfo Villanueva and Vilma Borja vs. Rodelio Buenviaje, Sheriff III, Municipal Trial Court in Cities, Branch 1, Cavite City).

This is a complaint against Rodelio Buenviaje, Sheriff III, Municipal Trial Court in Cities, Branch 1, Cavite City for grave abuse of authority and conduct prejudicial to the best interest of the service.

It appears that in 1996, Vilma Borja, one of the complainants herein, and Canada Villanueva contracted a loan in the amount of P59,000.00 from Kawit Lending Investor (KLI). Upon their default in payment, a compliant was filed against them by KLI with the Punong Barangay of Barangay Gumamela, Cavite City. The case was amicably settled by the parties, with Vilma Borja and Candida Villanueva agreeing to pay KLI in three monthly installments from October to December 1997. However, the two failed to comply with the agreement, for which reason KLI, through Angelita Co, filed a petition for the issuance of a writ of execution on January 20, 1998 in the Municipal Trial Court in Cities, Cavite City. KLI's petition was granted, and a writ of execution was issued on March 31, 1998 against Vilma Borja and Candida Villanueva.

Noting the affidavit, dated September 18, 1997, executed by Vilma Borja and Candida Villanueva, respondent attached a tricycle with plate number VZ 4694 which the two claimed belonged to them. However, Rodolfo Villanueva filed a third-party claim, dated May 26, 1998, alleging that the tricycle belonged to him. Respondent notified KLI of the filing of a third-party claim and, on June 19, 1998, released the tricycle to the third-party claimant.

Complainants charge that respondent committed grave abuse of authority and conduct prejudicial to the best interest of the service in attaching the tricycle and in demanding P20,000.00 from Vilma Borja in exchange for his desistance from enforcing the writ of execution.

In his answer dated September 7, 1998, respondent states that he attached the tricycle on the basis of the statement in the affidavit of Vilma Borja and Candida Villanueva that they are the absolute owners of the tricycle in question and that he released the tricycle to Rodolfo Villanueva after serving KLI a notice on May 27, 1998 of the filing of the third-party claim. Respondent denied that he demanded P20,000.00 from Vilma Borja in consideration of his desistance in enforcing the writ of execution. He claimed that he merely suggested to Vilma Borja that she offer KLI the amount of P20,000.00 as partial payment of the loan and to negotiate for a grace period to pay the balance.

In its report, dated February 24, 2000, the Office of the Court Administrator recommends that the instant complaint against respondent be dismissed.

The Court finds the recommendation to be well taken. In attaching the tricycle, respondent was enforcing a writ of execution issued by the court. He acted on the basis of the affidavit, dated September 18, 1997, executed by Vilma Borja and Candida Villanueva stating that they were the absolute owners of the vehicle.

Rule 39, �16 of the 1997 Rules of Civil Procedure provides that if the property levied on is claimed by any person other than the judgment obligor 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 the same upon the officer making the levy and a copy thereof upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied on. In the case at bar, respondent gave notice to KLI of the filing of a third-party claim, but, as KLI did not give a bond to indemnify the third-party claimant, respondent released the vehicle to the latter.

With respect to the charge that respondent tried to extort money from Vilma Borja, the records are bereft of any evidence to prove the claim. Accordingly, this charge should be dismissed.

WHEREFORE, the complaint, dated May 25, 1998, against respondent Rodelio Buenviaje, Sheriff III, Municipal Trial Court in Cities, Branch 1, Cavite City, is DISMISSED for lack of merit.

Very truly yours,

(Sgd.) TOMASITA M. DRIS

Clerk of Court

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