Forum Shopping

Manipud vs. Bautista, AC 6943, March 13, 2009.

This is the case of Atty. Fil (not his true name), a lawyer who escapes punishment for fraudulent and deceitful acts that have been clearly established on record, merely because of technicality. Even if he looks guilty of casting doubt upon the integrity and dignity of the legal profession, no disciplinary action is imposed on him.

In 2003, a Deed of Real Estate Mortgage (REM) was executed covering a property registered in the name of Tita, the auntie of Fil, to secure a loan obtained from Fred, another lawyer. When the loan was not paid on time despite demands, Fred filed an application for extra-judicial foreclosure of said property with the Clerk of Court and Ex-Officio Sheriff of the Regional Trial Court (RTC). Thereafter, a Notice of Extrajudicial Sale was issued and public auction was scheduled on April 1, 2005.

Before the auction date however or on March 22, 2005, Fil filed with the RTC as counsel of the mortgagor Tita, a verified complaint for annulment of the REM and the Notice of Extrajudicial Sale with Prayer for a Writ of Preliminary Injunction and/or TRO. Initially a TRO was issued so the scheduled sale did not proceed. But on May 18, 2005, the RTC lifted the TRO and denied the prayer for a writ of preliminary injunction. Thus, upon another application for extrajudicial foreclosure filed by Fred, another Notice of Extrajudicial Sale was issued by the Sheriff setting the public auction on July 29, 2005.

However, on July 20, 2005, Fil filed another complaint for annulment of the same REM containing the same allegations, involving the same parties, the same subject matter, the same facts, the same issues and seeking the same relief. The fact of filing and the pendency of the first case were disclosed by Fil in paragraphs 18, 20, and 22 of the second complaint and in the Certificate of Non-Forum Shopping.

Nevertheless, on November 21, 2005, Fred filed a complaint for disbarment of his companero Fil for filing the two exactly similar complaints which constitutes forum shopping in violation of his attorney’s oath and of Canon 1, Rule 1.01 of the Code of Professional Responsibility, and for improper conduct. At the same time Fred also asked the RTC for the dismissal of the second complaint on the ground of forum shopping.

In response, Fil promptly withdrew the second complaint before the RTC and in his comment to the disbarment case, Fil alleged that he filed the second complaint as a desperate attempt to restrain the sale of his aunt’s property out of pity for her who was about to lose her family home due to the unconscionably high monthly interest being charged by Fred. Fil contended that he was not guilty of forum shopping because he did not act willfully, maliciously and with ill intent.

 Fil contended that the institution of the second complaint was only in reaction to Fred’s second application for foreclosure which impressed upon his mind that it was another foreclosure. In fact Fil claimed that his prompt withdrawal of the second complaint was indicative of his good faith.

On October 3, 2006 however, Fred discovered for the first time that the mortgagor Tita who was Fil’s auntie had been dead since October 16, 1968. Despite this fact, Fil still notarized both the first and second complaints purportedly signed by his aunt who was by that time long dead.

So at the scheduled mandatory conference on March 29, 2007, Fred tried to raise this fact of death of the mortgagor in 1968 way before she supposedly mortgaged the property in 2003. Fred contended that since Tita was Fil’s auntie, he should know that Tita and the one who signed both complaints are two different persons because Tita was already dead by that time. Thus Fred alleged that Fil’s act of resurrecting a dead person, not once but twice demonstrates a character not befitting a member of the legal profession.

But Fil objected to the raising of these facts in his disbarment case on the ground that the only issue here is whether he violated the rule on forum shopping. The IB Investigating Commissioner agreed with Fil and just told Fred to point this out in his position paper. But when Fred raised this fact in his position paper, the Commissioner nevertheless resolved only the issue on forum shopping and found that Fil was not administratively because the filing of the second complaint was not done maliciously and willfully to commit forum shopping. Was the IBP commissioner correct?

Yes. According to the Supreme Court, Fred’s complaint merely charged Fil with commission of forum shopping in violation of his attorney’s oath and the Code of Professional Conduct, and for improper conduct. Fil’s act of allegedly resurrecting Tita from the dead and for allowing an impostor to impersonate the dead was never raised as an issue. Hence Fred could not raise the same at this last stage of the proceedings. 

But is Fil’s act of resurrecting the dead and allowing an impostor to impersonate the dead not an “improper conduct” which is also one of the grounds of Fred’s complaint.

Technicality A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated October 27, 2010