[A.M. OCA IPI No. 06-2387-P.
ANTONIO S. LIU v.
CHRISTOPHER NORMAN C. PUBLICO, SHERIFF IV, RTC, BRANCH 31,
First Division
Quoted hereunder, for your information, is a resolution of this
Court dated
A.M. OCA IPI No. 06-2387-P (Antonio
S. Liu v. Christopher Norman C. Publico, Sheriff IV,
RTC, Branch 31,
Acting on the Report of the Office of the Court Administrator
(OCA) dated
1. AFFIDAVIT-COMPLAINT (with Annexes) dated 6 February 2006 of Antonio S. Liu charging Christopher Norman C. Publico, Sheriff IV, RTC, Branch 31, Manila with Dereliction of Duly relative to Extra Judicial Foreclosure No. 04-2191 entitled "Equitable Savings Bank v. Sps. Sy Siok Hun and Antonio Liu."
Complainant, who is one of the mortgagor-respondents in the aforecited extra judicial foreclosure proceeding, narrates
that after the extra judicial sale of the mortgaged property, he wrote
respondent on
Complainant alleges that instead of issuing the certificate of redemption, which he contends is a mere ministerial duty, respondent instead sent him a letter dated 16 December 2005 explaining that he (respondent) could not issue the deed of redemption as "he is not in a position to do so." He maintains that while respondent admits in his letter that it is his ministerial duty to prepare the certificate to be signed by the corresponding authorities yet respondent refused to do so and instead exercised discretion, which is clearly judicial, by interpreting provisions of law like Section 47 of the General Banking Law of 2000 in relation to Section 28 or Rule 39, 1997 Rules of Civil Procedure. Moreover, he contends that respondent further exercised discretion by concluding that what was tendered by him (complainant) was insufficient per statement of account from mortgagee-bank Equitable Savings Bank (ESB). He contends otherwise as he already paid the bid price plus all legal interest and taxes due. Besides, he maintains that the extra-judicial foreclosure was conducted pursuant to Act No. 3135 and not under the General Banking Law of 2000. Moreover, he posits that Section 28 of Rule 39, 1997 Rules of Civil Procedure does not provide that it be construed in relation to other laws. Thus, he concludes that the refusal of respondent to issue the certificate of redemption which is purely ministerial is a clear dereliction of duty as an officer of the Court.
2. In his COMMENT (with
Annexes) dated
Respondent contends that despite knowledge of the outstanding
balance per ESB statement complainant, without informing ESB, deposited with
the Cashier of the OCC-RTC Manila the amount of P1,040,543.14
as redemption price. Thereafter, he
alleges that complainant accompanied by the Sheriff of RTC-Br. 1 approached him
and asked for the issuance of the deed of redemption. He posits that on
Respondent denies interpreting any law, much less exercising discretion anent holding in abeyance the approval of the deed of redemption as he merely applied the Rules as provided in page 62 of the sheriff’s manual relative to the redemption price. In fine, he points that it was complainant who asked for the computation of the redemption price and despite receiving the statement of account from ESB still paid or deposited an amount substantially less than the outstanding balance, and thus alleges that complainant is misleading the Court by omitting to mention such facts in the instant complaint.
In his REPLY dated
Complainant thus alleges that respondent is taking the cudgels for ESB by demanding that he pay the redemption price as computed by ESB, completely ignoring the computation of the OCC-RTC Manila, and in concluding that his payment is insufficient.
4. In his REJOINDER
(with Annexes) dated 29 March 2006, respondent asserts that as sheriff, he is
in-charge only of the foreclosure proceedings and that it is mortgagee-bank ESB
which has the data of the total obligation of the mortgagors. He thus posits that it is precisely upon
complainant's request for the redemption price that he notified ESB. He maintains that Clerk of Court Atty.
Buendia told him that the bank's statement of account is the basis for the
redemption price. Moreover, he contends
that the crux of the matter is whether the deposit or payment made by
complainant is valid as mortgagee-bank ESB refused to accept it considering
that it was substantially insufficient.
Thus, with the foregoing facts he could not issue the deed of
redemption; and he informed the Court through his report of
Together with his Rejoinder, respondent submitted a Letter dated
5. In
his COMMENT (To Respondent's Rejoinder) dated 6 April 2006, complainant asserts
that given the series of events, it must be noted that respondent did not
answer his 7 November 2005 letter but instead informed ESB about it. Thus, he maintains that with the deliberate
failure of respondent to heed his request coupled with the fast approaching
deadline of the period for redemption, he was constrained to have OCC-RTC
Manila compute the redemption price and he paid it on
Evaluation: The complaint must be dismissed. The allegations in the instant complaint have no legal basis. First, respondent is correct in relying on the sheriffs’ manual "A Handbook for Sheriffs" which, considering that mortgagee is a banking institution, properly applied Section 78 of the General Banking Law and pursuant thereto respondent deferred to mortgagee-bank ESB for the redemption price. It is thus clear that "the redemptioner should make an actual tender in good faith of the full amount of the purchase price xxx xxx, i.e., the amount fixed by the court in the order of execution or the amount due under the mortgage deed, as the case may be, with interest thereon at the rate specified in the mortgage, and all the costs, and judicial and other expenses incurred by the bank or institution concerned by reason of the execution and sale and as a result of the custody of said property less the income received from the property."
Second, given the issue of the sufficiency of complainant's deposit or payment vis-à-vis what mortgagee-bank ESB stated in its statement of account, respondent cannot be expected to pursue the issuance of the certificate of redemption. Besides, given the fact that complainant received ESB's statement of account, respondent could not be faulted in informing ESB about the payment or deposit of complainant vis-à-vis the amount specified in the statement of account.
Third, while it is true that the deed of redemption was made by
respondent and signed by Ex-Officio Sheriff and Clerk of Court Atty. Buendia on
Fourth, we find respondent's explanation sufficient in not
mentioning to complainant the fact that Atty. Buendia already signed the deed
as it is beside the point considering that respondent did not submit it to
Exec. Judge Eugenio, Jr. for signature and approval due to
the issue of the redemption price.
Besides, he copy furnished complainant of his
Lastly, in case of disagreement over the redemption price, as in
the instant case, complainant-redemptioner may preserve his right through
judicial action instituted within the one-year period of redemption. He was made aware on
RECOMMENDATION: Respectfully submitted for the consideration of the Honorable Court is our recommendation that the instant administrative complaint against Sheriff IV Christopher Norman C. Publico be DISMISSED for lack of merit.[1]
The Court concurs with the foregoing recommendation.
It is settled that in administrative proceedings, the complainant has the burden of proving, by substantial evidence, the allegations in his complaint. Such evidence must be competent and derived from direct knowledge.[2] Charges based on mere conjectures and suppositions cannot be given credence.[3] Thus, if in the absence of contrary evidence, what will prevail is the presumption that a sheriff has regularly performed his official duty.[4]
Indeed, sheriffs are "ministerial officers" who are agents of the law and not of the parties, neither of the creditor nor of the purchaser at a sale conducted by him.[5] A purely ministerial act or duty is one which an officer or tribunal performs in the context of a given set of facts, in a prescribed manner and without regard to the exercise of his own judgment upon the propriety or impropriety of the act done.[6] In this case, Sheriff Publico was merely performing his ministerial duty when he refused to issue a certificate of redemption to the complainant.
CONSIDERING THE FOREGOING, the Court resolves to DISMISS the instant administrative complaint against Christopher Norman C. Publico for lack of merit.
Very truly yours,
(Sgd.) ENRIQUETA ESGUERRA-VIDAL
Clerk of Court
First Division
[1] Rollo, pp. 75-78.
[2] See Urgent Appeal/Petition for Immediate Suspension & Dismissal of Judge Legaspi, 453 Phil. 459 (2003).
[3] Cortes v. Chico-Nazario, A.M. No. SB-04-11-J,
[4] Salcedo v. Caguioa, A.M. No.
MTJ-00-1328,
[5] Sismaet v. Sabas,
A.M. No. P-03-1680,
[6] Sismaet v. Sabas, supra, at 247-248.