Republic of the Philippines
MUNICIPAL TRIAL COURT OF CEBU CITY
Branch 1
NOEL Q. BACALLA, Jr.
Civil Case no. 50
For: Collection of Sum
Plaintiff,
-
versus -
ROBERT E. IRAN
Defendant,
PRE TRIAL BRIEF
DEFENDANT, by counsel, to the Honorable Court, respectfully
submits its pre trial brief as follows:
STATEMENT OF THE CASE
Art. 1231 of the Civil Code provides that;
Obligations are extinguished:
(1) By payment or performance:
(2) By the loss of the thing due:
(3) By the condonation or remission of the debt;
(4) By the confusion or merger of the rights of creditor and debtor;
(5) By compensation;
(6) By novation.
Other causes of extinguishment of obligations, such as annulment, rescission,
fulfillment of a resolutory condition, and prescription, are governed elsewhere
in this Code. (1156a)
On January 6, 2005, defendant came to the residence of the plaintiff
requesting that he be allowed to borrow Pesos: Fifty Thousand (P 50,000.00)
for the purpose of using the money to pay for the hospital expenses incurred
for the medication of his wife.
Touched with his compassionate heart, plaintiff lent the aforesaid
amount on the condition that he be repayed on or before May 31, 2005 as
provided for in the promissory note executed by the plaintiff.
On June 8, 2005, defendant received the demand letter from the
plaintiff. Upon reading the demand letter, in truth and in fact, defendant
scampered to look for funds in order the settle the amount owed to the
plaintiff.
On June 10, 2005, defendant went to the residence of the plaintiff in
order to effect payment. However, the plaintiff was not physically around at
that time.
Defendant decided to tender the amount of Pesos:
Fifty
Thousand (P 50,000.00) demanded from him to the plaintiffs daughter, Ma.
Cristina S. Bacalla, of legal age, and living with plaintiff within the same
abode. Receipt of the amount is evidenced by a written acknowledgment by
the plaintiffs daughter.
However, plaintiff claims to have not received the payment from the
defendant.
Further, plaintiff is insisting that there was a stipulation of
interest of 5% per month which was not written on the face of the promissory
note executed by the defendant. Defendant claims otherwise as stipulated in
the foregoing, hence this instant case.
POSSIBILITY OF AMICABLE SETTLEMENT
Defendant owes much gratitude to the plaintiff and his family. Over
the years, plaintiff has been a good Samaritan in the community. It is of
paramount interest of the defendant to amicably settle the case. Defendant is
very much willing to pay for a legal interest rate of 6% per annum and the
attorneys fees of Pesos: Five thousand (P 5,000.00) as prayed for by the
plaintiff in his complaint.
PROPOSED STIPULATION OF FACTS AND/OR ADMISSION OF
FACTS
1)
That plaintiff is not into the business of lending money for interest
or for the purpose of deriving profits therefrom.
2)
That Ma. Cristina S. Bacalla, of legal age, single, is the daughter of
the plaintiff living with him within the same abode.
3)
That Ma. Cristina S. Bacalla does not suffer from any impairment
of her mental faculties that impairs her legal capacity to enter into
a contract or whatever of the same nature.
4)
That the signature appearing on the Acknowledgment Receipt
marked as Exhibit B hereof is that of Ma. Cristina S. Bacalla.
5)
That on June 10, 2005, on or about 3PM to 4PM, plaintiff was not
around or within the premises of his residence.
ISSUES TO BE TRIED OR RESOLVED
1)
Whether or not there was a stipulation of interest charges at the
time the plaintiff granted the plead of the defendant of lending
money;
2)
Whether or not interest charges may be legally imposed even in the
absence of such provision on the face of the promissory note
executed by the defendant;
3)
Whether or not the payment made to the daughter of the plaintiff
who lives with him in the same abode is a valid tender of payment
as if it was made directly to the plaintiff therefore extinguishing the
obligation.
EXHIBITS MARKED AS DOCUMENTS TO BE PRESENTED
The following documents are to be presented:
Exhibit A A machine copy of the promissory note executed by defendant
Exhibit B A machine copy of the acknowledgement receipt by Ma. Cristina
S. Bacalla
Exhibit C A machine copy of the demand letter by the plaintiff to the
defendant
Exhibit D A sample specimen signature of the plaintiff
Exhibit E A sample specimen signature of the Ma. Cristina S. Bacalla
Exhibit F A sample specimen signature of the defendant
The defendant reserves his right to present other documents not herein listed
a may be deemed necessary.
WITNESSES TO BE PRESENTED
1)
The defendant himself to testify that he has effected the payment;
2)
The wife of the defendant, Flair S. Iran to testify the fact of the
payment;
3)
The children of the defendant to testify the fact of payment;
4)
Atty. Marlon R. Etcuban to testify that the funds used by
defendant to pay his obligation was in fact from him;
5)
Ma. Cristina S. Bacalla to testify that she received the payment of
the defendant;
6)
Defendant reserves the right to present other witnesses not herein
enumerated as deemed necessary.
The testimonies of the witnesses would not consume more than 15
minutes on direct examination, and another 15 minutes on cross
examination.
DATES OF HEARING
The defendant would depend upon the dates agreed upon during the
pre trial.
RESPECTFULLY SUBMITTED.
Cebu City.
September 29, 2005
NOEL O. BACALLA
Attorney for the Defendant
6F Cebu Holdings Center, CBP
Cebu City /Tel no. 2315301
Roll no. 00079
IBP no. 00080 Jan. 1, 2005
PTR no. 0000012 Jan. 1, 2005
Cebu City
Copy furnished by personal service:
Atty. Richard Z. Tenchavez
Counsel for the plaintiff
Unit 2 Carbon Market
Ermita, Cebu City
Received by:
________________
Date:
______________
