POSITION PAPER
PLAINTIFF represented by and through the undersigned counsel and
in compliance with the Preliminary Conference Order dated August 22,
2016
(copy received on September 10, 2016),
hereby submits
Defendants POSITION PAPER.
BRIEF STATEMENT OF FACTS
Plaintiff, Milagros M. Dela Cruz filed a Complaint against defendant,
ROGELIO M. DELA CRUZ,
for:
QUIETING OF TITLE AND
DECLARATION OF OWNERSHIP and docketed as Civil Case No. K1200025 on July 30, 2016.
That plaintiff and defendant are sibling who inherited two (2) parcels
of land of the same area situated at Brgy. Poblacion, Buruanga, Aklan and
that defendant is the elder brother of the plaintiff.
That, as co-owners of the two (2) parcels of land, plaintiff upon the
prodding of the defendant executed a Special Power of Attorney (marked
as Exhibit 1), indicating as follows:
1. Designating defendant as the Administrator of the property;
2. That for convenience and expediency the Original Torrens
Certificate of Title under the name of their late mother,
ANGELINA M. DELA CRUZ, shall be transferred and placed in
the name of defendant, ROGELIO M. DELA CRUZ;
3. That both plaintiff and defendant shall equally share from the
proceed of the fruits in the property.
4. That the defendant shall not sell and/or convey any parcel of
the land without the consent of the plaintiff;
vs.
ROGELIO M. DELA CRUZ
Defendant
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C O M P LAI N T
PLAINTIFF, MILAGROS M. DELA CRUZ, by and through the undersigned
counsel, unto this Honorable Court, most respectfully state:
1. PLAINTIFF, is of legal age, Filipino, single and residing at 10 Roxas
Ave., Poblacion, Kalibo, Aklan. She may be served with summons
and other processes of the Honorable Court at her address;
2. DEFENDANT, ROGELIO M. DELA CRUZ, of legal age, Filipino,
married, and residing at 70 Melgar Road, Brgy. Estancia, Kalibo,
Aklan is the older brother of plaintiff. He may be served with
summons and other processes of the Honorable Court at his given
address;
3. That, plaintiff and defendant are co-owners two parcels of land with
exactly the same area situated at Barangay Poblacion, Buruanga,
Aklan which plaintiff and defendant inherited from their late mother
ANGELINA DELA CRUZ as evidenced by the attached Holographic
Will (marked as Annex A) and Original Certificate of Title under the
name of ANGELINA DELA CRUZ (marked as Annex B);
4. That plaintiff upon the prodding of defendant, ROGELIO M. DELA
CRUZ executed a Special Power of Attorney (marked as Annex C)
indicating as follows:
4.a. That both plaintiff and defendant are co-owners of the
parcel of land which they inherited from their late mother.
4.b. That, the defendant shall be named the Administrator of
both parcel of land and for convenience and expendiecy the
Torrens Title Certificate shall be transferred and placed in the
name of the defendant.
4.c. That, the defendant as the Administrator and the named
owner in the Torrens Title Certificate of the two parcels of land,
shall not sell and convey any parcel of land without the consent
of the plaintiff.
4.d. That, should any or all parcel of land be sold by the
defendant the proceed from the sale shall be equally shared by
the plaintiff and defendant being co-owners of the said parcel of
land.
4.e. That, defendant sold one parcel of land without the
consent of the plaintiff and in bad faith did solely keep for his
own personal gain the proceeds of the sale.
5. That by reason of the defendants bad faith in selling one parcel of
land of their inheritance in violation of the terms indicated in the
Special Power of Attorney, Plaintiff was forced to engage the
services of counsel to protect her rights and interest in the amount of
Fifty Thousand Peson (PhP50,000.00) and expects to incur litigation
expenses in the amount of One Hundred Thousand Pesos
(PhP100,000.00);
WHEREFORE, it is most respectfully prayed that judgment:
1.
Ordering defendant to cease and desists from acting as
Administrator of the remaining one (1) parcel of land owned by the Plaintiff
as part of her inheritance from their deceased mother, defendant having
had sold the other parcel of land exactly of the same area without
knowledge of the plaintiff and having solely kept to himself for his own
benefit and use the proceed of the sale;
2.
To Quiet the Title of the defendant on the remaining one (1)
parcel of land and to declare plaintiff as the rightful owner of the same as
her share as co-owner with the defendant of the two parcels of land of the
same area, the other area having been sold by the defendant and the
proceed of which the defendant solely allocated for himself.
3.
To pay Plaintiff the sum of Fifty Thousand Pesos
(PhP50,000.00) as and for attorneys fees and One Hundred Thousand
Pesos (PhP100,000.00) as litigation expenses.
Plaintiff also pray for such other remedy as this Court may deem just and
equitable.
Kalibo, Aklan, Philippines, for 5TH Municipal Circuit Trial Court of BuruangaMalay, Buruanga, Aklan, July 24, 2016.
presence, and affirmed or swore under oath to the truth and correctness of
the contents or allegation of the same.
JOSE SIGURISTA
Notary Public
Notarial Commission No.2 (2016-2019)
L. Barrios St., Kalibo, Aklan