REPUBLIC OF THE PHILIPPINES
NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
MAKATI CITY
xxx
ALBERTO xxx,
Plaintiffs,
Civil Case No. xxx
-versus-
xxxx,
Defendant.
x-----------------------------------
COMMENT/OPPOSITION
xxx, through the undersigned counsel, by way of this special
appearance, opposes the Motion for Reconsideration dated xxx filed
by the Defendant, and state: THAT –
1. In moving for the reconsideration of the Order dated xxx, the
Defendant maintains that she has “sufficiently shown that the
properties involved were transferred by the Petitioners in fraud
of its creditor.”
2. To bolster her claim, she again cited the archaic case of Oria vs
Mcmicking where it was allegedly stated that “the creditor may
attack the sale by ignoring it, and seizing under his execution
the property, or any necessary portion thereof which is the
subject of the sale.”
3. The argument of the Defendant is a mere rehash and reiteration
of its prior arguments presented in her Motion to Levy. As we
have already discussed in our previous Opposition to the
Motion to Levy, the Defendant’s heavy reliance in the Oria
case is unavailing and misplaced as the said case shoulder no
longer be applicable in light of latest jurisprudence on the
subject matter.
4. Assuming, but without admitting, that the Defendant is correct
in arguing that there is transfer in fraud of a creditor, the
proper remedy would have been to file a separate action for
the rescission of the Deed used to transfer the subject titles
in the names of their current owners. This action is called
“accion pauliana.” An independent action for rescission is
necessary to prove that the contract is rescissible because it was
done in fraud of creditors.
5. In addition, the subject property is already registered in the
names of third-party individuals not party to the case and not
judgment obligors. Settled is the rule that the power of the
Court in the execution of judgments extends only over
properties unquestionably belonging to the judgment debtor.
6. This is precisely the ruling of the Supreme Court in the case of
Air France vs. Court of Appeals, et., al.,1 where it was held
that:
“It is well-settled that the power of the court in the execution
of judgments extends only over properties unquestionably
belonging to the judgment debtor. Here, the property in
question was sold to private respondent Iolani Dionisio, who
was not a party to the case subject of execution.
xxx
Petitioner's contrary claim that the property belongs to
private respondent spouses, if true, requires a rescissory
action which cannot be done in the same case, but through
the filing of a separate action.
Rescission is a relief which the law grants on the premise that
the contract is valid for the protection of one of the contracting
parties and third persons from all injury and damage the
contract may cause, or to protect some incompatible and
preferential right created by the contract.
Under Art. 1381 of the Civil Code, the following contracts are
rescissible:
xxx xxx xxx
xxx
(3) Those undertaken in fraud of creditors when the latter
cannot in any other manner collect the claims due them;
(4) Those which refer to things under litigation if they have
been entered into by the defendant without the knowledge and
approval of the litigants or of competent judicial authority;
xxx
Rescissible contracts, not being void, they remain legally
effective until set aside in a rescissory action and may convey
1
GR. No. 104234, June 30, 1995.
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title. Nor can they be attacked collaterally upon the grounds
for rescission in a land registration proceeding.
An action for rescission may not be raised or set up in a
summary proceeding through a motion, but in an
independent civil action and only after a full-blown trial. As
Article 1383 of the Civil Code provides:
Art. 1383. The action for rescission is subsidiary; it cannot be
instituted except when the party suffering damage has no other
legal means to obtain reparation for the same.
Regarding contracts undertaken in fraud of creditors, the
existence of the intention to prejudice the same should be
determined either by the presumption established by Article
1387 or by the proofs presented in the trial of the case. In any
case, the presumption of fraud established by this article is not
conclusive, and may be rebutted by satisfactory and convincing
evidence. To repeat, an independent action is necessary to
prove that the contract is rescissible.
(Emphasis and underscoring supplied.)
7. Thus, the Honorable Court correctly ruled that:
“Clearly, this Court cannot act on defendant Lim’s motion to
declare the said properties as being transferred in fraud of
creditors.”
8. The statement in the Oria case that the creditor may attack the
sale by ignoring it, and seizing under his execution the
property finds no application in this case in light of the more
recent and direct ruling by the Supreme Court that “an
independent action is necessary to prove that the contract is
rescissible.”
PRAYER
WHEREFORE, in view of the foregoing, the Motion for
Reconsideration file by the Defendant should be DENIED for utter
lack of merit.
Other reliefs, just and equitable under the premises, are
likewise being prayed for.
Respectfully Submitted.
xxx
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