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[ G.R. No. 141757. November 13, 2000]

GLORIA M. TOLENTINO-SAMSON vs. CA, et al.

THIRD DIVISION

Gentlemen:

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

G.R. No. 141757 (Gloria M. Tolentino-Samson, in her capacity as one of the heirs of Jose R. Mia, vs. Court of Appeals and Heirs of Rafael Cortez, et al.)

Petitioner assails of the Court of Appeals denying due course to her petition, thus affirming the denial by the regional trial court of her motion for summary judgment on the ground that there exist genuine issues of fact would be better adjudicated in a full blown trial.

The present controversy sprung from an action for nullification of foreclosure proceedings, wherein petitioner filed a motion for summary judgment on the ground that private respondents allegedly made the following admissions:

a) No notice of the sale was posted for not less than twenty days before the foreclosure sale;

b) The newspaper where the notice was published is not a newspaper of general circulation published, edited and circulated in Manila;

c) There is no final deed of sale in favor of the defendants; and

d) No notice of foreclosure, in writing by registered mail, was sent to the mortgagor or any of his heirs.

Petitioner contended, there is no more genuine issue as to the nullity of the questioned foreclosure. Consequently, she filed a request for admission, but in their reply, private respondents denied the alleged admissions. Again, petitioner filed a second request for admission but this too were met with denials in private respondent's reply.

On May 6, 1997, the trial court issued an order denying petitioner's motion for summary judgment. The motion for reconsideration having failed, petitioner elevated the matter before the Court of Appeals which upheld the order of the trial court.

Thus, the instant petition. Private respondent have accordingly, submitted their comment to which a reply was in turn filed by petitioner. We find the petition lacking in merit.

It is settled dictum in our jurisdiction that summary judgment is proper only when there is clearly no genuine issue concerning any material fact in the action, and if there is any question or controversy upon any question of fact, there should be a trial on the merits. Summary judgment is not proper where the defendant presents defenses tendering factual issues which call for the presentation of evidence as where the defendant specifically denied the material allegations in the complaint (Tamo vs. Gironella, et al., 73 SCRA 613 [1976]).

Likewise, settled is the rule that summary judgment may only be granted if the facts which stand admitted by reason of a party's failure to deny statements contained in a request for admission show that no material issue of fact exists (Allied Agri-Business Development Co., Inc., vs. Court of Appeals, 299 SCRA 680 [1998]).

In the case at bar, contrary to petitioner's allegations, no admission, express or implied, was ever made by private respondents. In fact, only denials of petitioner's request for admission were contained in private respondents' replies, giving rise to genuine issues of fact.

Finally, this Court has ruled that a party who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, or that the issue posed in the complaint is so patently unsubstantial as not to constitute a genuine issue for trial (Go vs. Court of Appeals, 252 SCRA 564 [1996]). Regrettably, petitioner failed to establish that this was so in the case at bar.

WHEREFORE, petition is denied due course.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court

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