Injunction

REPUBLIC OF THE PHILIPPINES 11th JUDICIAL DISTRICT REGIONAL TRIAL COURT Davao, Branch No. 11

PEDRO SANTOS Plaintiff, CIVIL CASE No. 070384 FOR : INJUNCTION WITH PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER 

-versus-

JUAN DE DIOS, RAYMOND SILVA - Sheriff  Defendant

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COMES NOW, Plaintiff through the undersigned Counsel, before this Honorable Court,

most respectfully states that: THE PARTIES

1. That That Plaintif Plaintifff Pedro Santos, Santos, is of legal age, age, Filipino Filipino citize citizen n and a reside resident nt of 1 Main Main Street Matina, Davao City where he may be served with summons and other Court Processes; 2. That defendant defendant is of of legal age, age, Filipino Filipino citizen, citizen, a resident resident of 2 Main Street Street Matina, Matina, Davao Davao City; 3.

Defendant Raymond Silva is also impleaded in his capacity as the Sheriff V of the Region Regional al Trial Trial Court-C Court-Cler lerk k of Court-S Court-Sher heriff iff,, Davao Davao City. City. He can be served served with with summons and other Court processes at the Office of the Clerk of Court- Regional Trial Court-Sheriff, 11th Judicial Region, Ecoland, Davao City;

4.

Plaintiff and Defendants have the legal capacities to sue and be sued.

ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

1.

That on January 1, 2010, the plaintiff obtained a loan from the plaintiff in the sum of Five Hundred Thousand Pesos (P 500,000.00) to be fully paid on its due date which is on June 1, 2009. Consequently, Juan de Dios and Pedro Santos executed a Deed of Real Estate Mortgage with a Promissory Note dated January 1, 2010, photocopy of which is hereto attached as Annex "A", Pedro Santos as a Mortgagor and Juan Santos as the mortgagee on a parcel of Land covered by Transfer of Certificate of Title (TCT) No. T-123456;

2.

Defendant, in turn filed an application for Extra-Judicial Foreclosure of the Real Estate Mortgage before the Office of the Sheriff, Regional Trial Court, Davao City. Alleged in the application is the indebtedness of the Plaintiff amounting to Five Hundred Thousand Pesos (Php 500,000.00) which was due six (6) months after the said date. The Clerk of  Court, in turn, issued a Notice of Foreclosure informing the Public that the Parcel of Land at issue, with all its improvements shall be sold at a Public Auction to be held in October  1st 2010 at 9:00 in the morning;

3. There is no just and valid ground to the aforesaid application against the Plaintiff’s  property since he remains to be the rightful owner being able to fulfill his obligation with the defendant, thus precludes the extinguishment of the obligation; 4.

The obligation has been extinguished because the defendant paid the amount of Five Hundred Thousand Pesos (P500, 000.00), based on these following facts: Mr. Juan de Dios approached the defendant Mr. Santos, on March 3, 2010 and told him that he needs Construction materials. Mr. de Dios offered to help him and he let Mr. de Dios have the construction materials he needed worth of Five Hundred Thousand Pesos (P500, 000.00). All of these construction materials were from Pedro Santos and Sons Inc. Construction materials which are one of the businesses owned by Mr. Santos together with his sons.

5. Evidently, by reason of compensation through the materials purchased from Pedro Santos and Sons Construction INC., the mortgage shall then be discharged and the same no longer has force or legal effect. Thus, the foreclosure and sale of the aforesaid property of 

the herein plaintiff would unduly prejudice and render substantial injustice to the Plaintiff. PRAYER 

WHEREFORE, it is respectfully prayed to this Honorable Court that a writ of Preliminary

Injunction with Temporary Restraining Order be immediately issued by this Honorable Court ordering the defendants Juan de Dios, and Raymond Silva, Sheriff IV of the Regional Trial Court-Clerk of Court-Sheriff, Davao City, to observe status quo; thereafter after due notice and hearing, a writ of Preliminary Injunction be issued; A.

To restrain the defendants from selling the property at pu blic auction on October 1st 2010 at 9:00 in the morning at the main entrance Hall of Justice, Ecoland, Davao City.

After trial on the merits, judgment be rendered: 1.

Making the Preliminary Injunction Permanent;

2. Ordering defendant to pay for Plaintiff’s moral damages in the total amount of One Hundred Thousand Pesos (Php 100,000.00); 3. Ordering defendant to pay for Plaintiff’s exemplary damages in the total amount of Fifty Thousand Pesos (Php 50,000.00); 4. Ordering defendant to pay for Attorney’s Fees in the total amount of Fifty Thousand Pesos (Php 50,000.00) for the undersigned counsel for the Plaintiff; and 5. Plaintiff further respectfully prays for other just and equitable reliefs under the premises.

In the City of Davao, 20 September 2010, Philippines.

ATTY. DAPHNE V. PAYOT -Counsel for the PlaintiffToril, Davao City PTR No 0703984 Issued on : July 03, 2006 Issued at : Davao City IBP No: 654321 Issued on : Dec 04, 2006 Issued at : Davao City ROLL No. 5432

VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING

I, Pedro Santos, of legal age, after having been duly sworn in accordance with law, depose and state that: 1. I am a plaintiff in the above-stated case; 2. I caused the preparation of the foregoing complaint; 3. I have read the contents thereof and the facts stated therein are true and correct of my personal knowledge and/or on the basis of copies of documents and records in my possession; 4. I have not commenced any other action or proceeding involving the same issues before the Regional Trial Court or any other tribunal or qu asi-judicial agency; 5. To the best of my knowledge and belief, no such action or proceeding is pending in the Regional Trial Court or any other tribunal or qu asi-judicial agency; 6. If I should thereafter learn that a similar action or proceeding has been filed or is pending  before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I undertake to report that fact within five (5) days therefrom to this Honorable Court. Davao City, September 20, 2010.

PEDRO SANTOS  Affiant 

SUBSCRIBED AND SWORN before me this September 20, 2010 at Davao City.

Doc. No. ; 56 Page No. ; 7 Book No. ; xxv Series of 2010.

ATTY. JOSE BONIFACIO NOTARY PUBLIC UNTIL DECEMBER 31, 2010 PTR No. 1234567 DATED: November 1, 2007

ANNEX A

Promissory Note

I, Pedro Santos, do promise to pay Juan de Dios the sum Five Hundred Thousand Pesos (P500, 000.00) on or before July 1, 2010. Should I fail to pay on the due date, I shall pay interest of 8% as penalty for any unpaid balance and should the legal counsel be retained to enforce collection, I shall further pay 5% of the amount due including interest as Attorney's fees. January 1, 2010 Matina, Davao City Philippines 8000

Signed,

Pedro Santos

ANNEX B

DEED OF REAL ESTATE MORTGAGE

KNOW ALL MEN BY THESE PRESENTS:

This DEED OF ABSOLUTE SALE is made, executed and entered into by:

PEDRO SANTOS, of legal age, married, Filipino, and with residence and postal address at 1 Main Street, Matina, Davao City, hereinafter referred to as the MORTGAGOR. -andJUAN DE DIOS , Filipino and with residence and postal address at 2 Main Street, Matina, Davao City, hereinafter referred to as the MORTGAGEE. WITNESSETH;

That the MORTGAGOR is indebted unto the MORTGAGEE an amount in the sum of Five Hundred Thousand Peso (Php 500,000.00), payable within six (6) months on or before July 01, 2010. FOR AND IN CONSIDERATION of said indebtedness, the MORTGAGOR hereby conveys and delivers by way of MORTGAGE unto the said MORTGAGEE, his owned which is a parcel of land with improvements located at 123 Barrio Makisig, Toril Davao City and covered by Transfer Certificate of Title No.07031984 containing a total area of 120,000 SQUARE METERS. Such property is absolutely owned by the MORTGAGOR, free from all liens a nd encumbrances. If the MORTGAGOR should fail or refuse to pay o n the indebtedness or interest when due then all the payment, interests and other obligations of the MORTGAGOR of any nature shall  become due, payable and defaulted and the MORTGAGEE may immediately foreclose this MORTGAGE judicially under Act No. 3135, as amended without any futher demand. However, if the MORTGAGOR pays the said obligation together with the interest, then this mortgage shall  be discharged and rendered of no force and effect. That the condition of this REAL MORTGAGE is such that the MORTGAGOR shall truly  perform the obligation of the above stated according to the precise terms, thereof, then this REAL MORTGAGE shall be null and void, otherwise, it shall remain in full force and effect an d  be enforceable in the manner provided by law. IN WITNESS WHEREOF, the parties have set their hands this January 30th 20 10 in Davao City, Philippines.

PEDRO SANTOS Mortgagor

JUAN DE DIOS Mortgagee

ANNEX C

Application for Extra Judicial Foreclosure of  Real Estate Mortgage under Act 3135 as amended

The City Sheriff  Davao City, Philippines

S I R: G R E E T I N G S: Mortgagee JUAN DE DIOS, of legal age, Filipino, married , and a resident of 2 Main Street Matina, Davao City, Philippines, most respectfully alleges: 1. That on Jan 30, 2010, Pedro Santos, of legal age, Filipino, married, and a resident of 1 Main Street Matina, Davao City, Philippines, executed a Real Estate Mortgage in my favor mortgaging said property described in the Real Estate Mortgage Contract hereto attached as Annex "A" and forming an integral part hereof; to secure the payment of loan in the amount which is shown in the promissory note executed by said Mortgagor-Debtor dated January 1, 2010 a copy of which is hereto attached as Annex "B" 2. That to the best of my knowledge, the mortgaged property is subject to no prior mortgage or  any lien whatsoever and is now in the possession and full control of the above-named Mortgagor-Debtor; 3. That the Mortgagor-Debtor defaulted in its obligation under the aforementioned Real Estate Mortgage Contract and Promissory Note; 4.That under the terms and conditions of the Real Estate Mortgage Contract, the Mortgagee is entitled to foreclose extra-judicially the mortgaged property. 4.That by the terms and conditions of the Real Estate Mortgage Contract herein-above referred to, the principal obligation of the Mortgagor which has become overdue as of June 30th, 2010 is in the amount of Five Hundred Thousand Peso (Php 500,000.00), excluding penalties, liquidated damages, past due interest, other charges and expenses of foreclosure. WHEREFORE, I respectfully request you to take possession of the property described in the aforementioned Real Estate Mortgage and sell the same at Public Auction in accordance with the  provisions of Act 3135 as amended. Please furnish the undersigned and the Mortgagor-Debtor  with copies of your notice of Sale at least ten (10) days before the sale. Davao City, Philippines.

JUAN DE DIOS

 Mortgagee