C.A. - G.R. CV No. 116334

Republic of the Philippines
Court of Appeals
Manila
THIRTEENTH (13TH ) DIVISION
BANK OF THE PHILIPPINE C.A.- G.R. CV No. 116334

ISLANDS,
Plaintiff-Appellant, Members:
vs. PAREDES, V.I.A. CHAIRPERSON,

MAMAUAG, JR.,F.M., AND
ALEX RICHARD O. HERRERA, HERNANDEZ-AZURA, M.C.V., JJ.
Defendant-Appellee.
Promulgated:
February 27, 2023
x---------------------------------------------------------------------------------------x
D ECI SI ON
HERNANDEZ-AZURA, J:
For Our consideration is the Appeal1 under Rule 41 of the Rules of

Court filed by plaintiff-appellant which assails the Orders2 dated 28 of
September 2020 and 20 October 2020, of the Regional Trial Court (“RTC”),
Branch 142, Makati City in Civil Case No. R-MKT-19-05611-CV entitled
“Bank of the Philippine Islands vs. Alex Richard O. Herrera”. The first Order
dismissed the Complaint for failure of plaintiff-appellant and its counsel to
appear during the pre-trial hearing of the case held on 28 September 2020.
The second Order denied the Motion for Reconsideration filed therefrom by
plaintiff-appellant for lack of merit.
The Antecedents
The facts, as culled from the records, read as follows:
As alleged in plaintiff-appellant’s Complaint3 and herein summarized,

defendant-appellee was issued a BPI Credit Card under Customer No.
020100-3-00-5150867 and the latter agreed to abide by the terms and
conditions governing the issuance and use of the credit card.
That one of the terms and conditions governing the issuance and use of
a BPI Credit Card is the payment by the cardholder of all charges incurred
through the use of the aforesaid card within the period of twenty (20) calendar
days from the assigned cut-off date without the necessity of demand. The
1
Rollo, pp. 11 - 12
2
Rollo, pp. 8 – 10
3
Original Records, pp. 1 – 17 including attachments
C.A.-G.R. CV No. 116334 Page 2 of 7
Decision
cardholder is given the option to pay the amount billed in full or the minimum
payment required in the statement of account. Should the cardholder opt to
pay the minimum payment, the card holder is charged 3.5% per month based
on the average balance. For non-payment on the due date indicated in the
billing statement, the unpaid balance shall be subject to late payment charge
at the rate of PhP 850.00 for every month's delay.
That defendant-appellee incurred credit charges as of 29 September

2019, in the total principal amount of PhP 706,093.08 as per Statement of
Account (SOA) of even date. His last partial payment made on his credit
account was in the amount of PhP 37,901.21 on 19 April 2019.
Plaintiff-appellant made a written demand upon defendant-appellee on

7 October 2019 to pay his outstanding obligation in the above-mentioned
amount but no payment has been made thereon by the latter within the period
given.
Thus, on 13 December 2019, the said Complaint for a Sum of Money

was filed against defendant-appellee by plaintiff-appellant demanding the
payment of the following: (a) the aforesaid amount of PhP 706,093.08, (b)
plus 3.5 finance charge per month, (c) late payment charges of PhP 850.00 for
every month of delay from 27 October 2019 until fully paid, (d) attorney’s
fees equivalent to 25% of the total obligation due, (e) appearance fees for
every court hearing, and (f) cost of suit.
In his Answer4, defendant-appellant denies that the amount of PhP

706,093.08 is the principal amount. He argues that the principal amount are
several amortized loans/special installment plans with principal and interest
which is a future value computed by plaintiff-appellant using the diminishing
balance method as can be seen from the Statement of Account dated 28 April
2019. He added that the Net Present Value should be first computed on the
amortized loans to remove interest which has not yet been earned by the
plaintiff-appellant.
He further alleges that he has more than once in the past pre-terminated
and paid in full previous amortized loans / special installment plans with
plaintiff-appellant. Plaintiff-appellant had computed the Net Present Value of
the principal removing any future interests which will then be used as principal
and the basis for payment by defendant-appellee.
He also alleges that he communicated through phone and email5 with

plaintiff-appellant on 20 May 2019 regarding his credit obligations even
before he failed to make his payments, and that he again sent a letter to
4
Original Records, pp. 21 - 28
5
Email addressed to BPI requesting for a restructuring of his debt that he can only afford to pay P7,000.00
monthly instead of P37, 901.21 as his business is not doing good but is promising to settle his debt in full
once his business recovers.
Decision
plaintiff-appellant dated 22 November 20196 but the latter already filed a case
on 13 December 2019. He said that this shows an urgency and a lack of
interest on the part of plaintiff-appellant to negotiate and compromise. And
thus, he denies that plaintiff-appellant did not succeed in any of its demand
upon him, and that plaintiff-appellant has used all option to settle outside the
court.
He finally contends that plaintiff-appellant cannot just demand the

payment of the amount of PhP 706,093.08 with finance charges and late
payment charges that is excessive and that the other claims being demanded
lack basis.
On 3 August 2020, the Court issued a Notice of Pre-Trial setting the

case for Pre-Trial Hearing on 28 September 2020 at 8:30 A.M. in court and
for Court – Annexed Mediation on the same day at 2:00 P.M. at the Philippine
Mediation Center.
On 25 September 2020, both parties filed their respective Pre-Trial

Brief. Plaintiff-appellant filed its Pre-Trial Brief through email.
During the Pre-Trial Conference on 28 September 2020, plaintiff-

appellant and its counsel did not appear in court despite due notice. Thus, the
RTC issued the assailed Order of even date dismissing the complaint, without
prejudice, for their absence during such proceeding.
On 8 October 2020, plaintiff-appellant filed a Motion for

Reconsideration alleging that its counsel did not receive any Notice from the
RTC setting the case for Pre-Trial Conference on 28 September 2020. It was
only on 30 September 2020 that plaintiff-appellant’s counsel received the
Order and Notice of Pre-Trial both dated 3 August 2020. The office liaison
of plaintiff-appellant’s counsel, Grace Sarza (Ms. Sarza), failed to inform said
counsel of the scheduled Pre-Trial hearing which she learned from the
defendant-appellee when she chanced upon him in court on 25 September
2020. Plaintiff-appellant’s handling counsel has been preparing the Pre-Trial
Brief of their cases, including the Pre-Trial Brief hereof, anticipating the
setting of pre-trial thereon when she noticed when she reported for work in
June 2020 that there were cases that have not been set for pre-trial.
In the assailed Order dated 20 October 2020, the RTC denied the
Motion for Reconsideration for lack of merit.
Hence, the Appeal.
6
In this letter, defendant-appellee is asking for the following considerations: (a) that all interests from his
amortizations be computed based on Net present Value as of April 2019, (b) for a waiver of interests and
penalties, (c) to be allowed to pay P7,000 a month which is what he can afford at present in view of his
financial constraints.
Decision
Plaintiff-appellant argues that it was not duly notified of the scheduled

Pre-Trial Conference on 28 September 2022, hence, they failed to attend the
same. The Orders both dated 3 August 2020 were only received by its counsel
on 30 September 2020 as certified to by the Postmaster IV of Quezon City.
Thus, it maintains that the RTC committed grave error when it dismissed
plaintiff-appellant’s Complaint for the latter’s failure and its counsel to attend
the Pre-Trial Conference on 28 September 2020.
Our Ruling
The appeal lacks merit.
Pre-trial is mandatory in nature and the parties and their respective

counsels are obligated to appear thereat. Section 47 and 58, Rule 18 of the
Rules of Court decrees the strict attendance of the parties and their counsels
during pre-trial and the sanctions for their non-appearance.
In the case of BPI Globe BanKo, Inc. A Savings Bank v. Countryside

Multi-Line Cooperative9, the Supreme Court emphasized the mandatory
character of pre-trial in civil cases and held as follows:
“Under the Rules of Court, it is explicitly stated that pre-trial is

mandatory for all civil cases. It is not a "technicality" that can be easily
brushed off. Thus, in The Philippine American Life & General Insurance
Company v. Enario, citing the case of United Coconut Planters Bank v.
Magpayo, this Court emphasized that "pre-trial cannot be taken for granted.
It is not a mere technicality in court proceedings for it serves a vital
objective: the simplification, abbreviation and expedition of the trial, if
not indeed its dispensation."
The mandatory character of pre-trial conferences is underscored by the

fact that litigants and their respective counsel are enjoined to appear the
same. Failure to abide by this express command carries severe
consequences. In particular, for the plaintiff, the failure to attend the pre-
trial conference makes the action initiated susceptible to dismissal with
prejudice. Exceptionally, however, should the failure of the
plaintiff to appear is for a "valid cause," such absence may be excused.”
7
“ Section 4. Appearance of [p]arties. - It shall be the duty of the parties and their counsel
to appear at the pre-trial, court-annexed mediation, and judicial dispute resolution, if
necessary. The non-appearance of a party and counsel may be excused only for acts of
God, force majeure, or duly substantiated physical inability. Xxx” (Emphasis, ours)
8
“Section 5. Effect of failure to appear. - When duly notified, the failure of the
plaintiff and counsel to appear without valid cause when so required[,]pursuant to the
next preceding [S]ection, shall cause the dismissal of the action. The dismissal shall be
with prejudice, unless otherwise ordered by the court. A similar failure on the part of the
defendant and counsel shall be cause to allow the plaintiff to present his or her evidence ex-
parte within ten (10) calendar days from termination of the pre-trial. and the court to render
judgment on the basis of the evidence offered. (5a)” (Emphasis, ours.)
9
G.R. No. 257464 (Notice), March 2, 2022
Decision
In the instant case, the plaintiff-appellant or its authorized

representative and its counsel failed to attend the scheduled Pre-Trial on 28
September 2020 without any motion filed to suspend and/or postpone the said
hearing. Accordingly, the RTC dismissed the case without prejudice. In
moving to reconsider the said dismissal, plaintiff-appellant, through its
counsel, justified their absence on the grounds that its counsel was not notified
of the Orders both dated 3 August 2020 setting the case for Pre-Trial and
Court-Annexed Mediation in the morning and afternoon of the aforesaid date,
respectively, and that its counsel’s staff, Ms. Sarza, who was informed of the
said schedule by defendant-appellee on 25 September 2020, failed to inform
them of such fact. The RTC did not accept said explanation as it did not
believe that plaintiff-appellant’s counsel was not notified.
An examination of the records of the case shows that the RTC served
the parties with the aforesaid Orders by Registered Mail on 10 September
2020 at the Makati Post Office and dispatched10 on 11 September 2020. As
shown in the dorsal portion of the envelope addressed to the counsel 11, the
said Registered Mail reached Quezon City Post Office on 15 September 2020
or four (4) days after it was dispatched. Hence, it is inconceivable that said
Registered Mail reached the hands of the counsel on 30 September 2020 or
15 days after the Quezon City Post Office received the same when it took only
four (4) days to transmit the same from Makati Post Office to Quezon City. It
is even unthinkable that two (2) days after the case was dismissed for failure
of plaintiff-appellant and its counsel to attend the Pre-Trial hearing, they now
claim that they just got, “by the way”, the notification issued by the RTC.
Also, plaintiff-appellant submitted as proof the Certification12 issued

by the Postmaster of Quezon Central Post Office. It states that the said
Registered Mail was delivered to plaintiff-appellant’s counsel on 30
September 2020. We observed, however, that the same is silent on the date
the Quezon City Post Office received the said registered mail from the time it
was dispatched by the Makati Post Office on 11 September 2020. It failed to
submit as evidence a certified copy of the page of the logbook maintained by
the concerned Quezon City Post Office which indicates the actual receipt
thereof by the receiving staff of counsel.
It is worth to emphasize that these Certification, envelope and the small

piece of paper indicating the Dispatch Particulars were mere afterthought and
did not form part of plaintiff-appellant’s Motion for Reconsideration but only
in its Appeal-Brief.
We also agree with the RTC that the filing of plaintiff-appellant’s Pre-
10
Attached as Annex “F-2” of Plaintiff-Appellant’s Brief, Rollo, p. 69
11
Attached as Annex “F-1” of Plaintiff-Appellant’s Brief, Rollo, unnumbered but supposed to be p. 68.
12
Attached as Annex “F” of Plaintiff-Appellant’s Brief, Rollo, p. 67.
Decision
Trial Brief three (3) days before the scheduled Pre-Trial on 28 September 2020
is not purely coincidental. Why would its counsel file the said Pre-Trial Brief
within the prescribed period if it is not aware of the scheduled Pre-Trial on 28
September 2020? It must be noted that Section 6, Rule 18 of the Rules of
Court requires the submission of the Pre-Trial Brief of the parties and service
thereof to the opposing party at least three (3) days before the scheduled Pre-
Trial.13
Notwithstanding, three (3) days before the scheduled Pre-Trial

conference, Ms. Sarza was also notified thereof by defendant-appellee. If
plaintiff-appellant’s counsel is indeed not aware of the 3 August 2020 Orders,
Ms. Sarza would have naturally requested copies thereof from the RTC
immediately as human experience dictates. This, she didn’t do, however.
Also, for her alleged failure to inform said counsel of the said Pre-Trial
schedule, Ms. Sarza was only meted out a suspension of one (1) day
considering the nature of Pre-Trial and the gravity of the effect of absence
during such proceedings,
The foregoing circumstances create a logical doubt as to the veracity of

the justification of plaintiff-appellant that it was not aware, as it was not
notified, of the scheduled Pre-Trial on 28 September 2020.
At any rate, the alleged failure of Ms. Sarza to inform the counsel of
the scheduled Pre-Trial is not a plausible excuse for the absence thereon by
plaintiff-appellant and its counsel. The Rules of Court is explicit. Non-
appearance of a party and counsel may be excused only for acts of God, force
majeure, or duly substantiated physical inability.
In view of all the foregoing, We find no reason to relax the strict

adherence to the mandatory provisions of Rule 18 of the Rules of Civil
Procedure. Plaintiff-appellant is not left without remedy as the RTC
dismissed the case without prejudice.
WHEREFORE, premises considered, the Appeal filed by plaintiff-

appellant Bank of Philippine Islands is DISMISSED. The assailed Orders
dated 28 September 2020 and 20 October 2022 rendered by RTC Branch 142,
Makati City in Case No. R-MKT-19-05611-CV are hereby AFFIRMED.
13
“Section 6. Pre-trial brief. – The parties shall file with the court and serve on the adverse party, in such
manner as shall ensure their receipt thereof at least three (3) calendar days before the date of the pre-trial,
their respective pre-trial briefs xx.
xxxx xxxx xxxx
Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. (8)”
Decision
SO ORDERED.
ORIGINAL SIGNED
MARY CHARLENE V. HERNANDEZ-AZURA
Associate Justice
WE CONCUR:
ORIGINAL SIGNED
VICTORIA ISABEL A. PAREDES
Associate Justice
ORIGINAL SIGNED
FLORENCIO M. MAMAUAG, JR.
Associate Justice
CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby

certified that the conclusions in the above decision were reached in
consultation before the case was assigned to the writer of the opinion of the
court.
ORIGINAL SIGNED
VICTORIA ISABEL A. PAREDES
Chairperson, Thirteenth Division

C.A. - G.R. CV No. 116334

Uploaded by

Copyright:

Available Formats

C.A. - G.R. CV No. 116334

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

C.A. - G.R. CV No. 116334

Uploaded by

Copyright:

Available Formats

Republic of the Philippines

THIRTEENTH (13TH ) DIVISION

BANK OF THE PHILIPPINE C.A.- G.R. CV No. 116334

vs. PAREDES, V.I.A. CHAIRPERSON,

For Our consideration is the Appeal1 under Rule 41 of the Rules of

The facts, as culled from the records, read as follows:

As alleged in plaintiff-appellant’s Complaint3 and herein summarized,

That defendant-appellee incurred credit charges as of 29 September

Plaintiff-appellant made a written demand upon defendant-appellee on

Thus, on 13 December 2019, the said Complaint for a Sum of Money

In his Answer4, defendant-appellant denies that the amount of PhP

He also alleges that he communicated through phone and email5 with

He finally contends that plaintiff-appellant cannot just demand the

On 3 August 2020, the Court issued a Notice of Pre-Trial setting the

On 25 September 2020, both parties filed their respective Pre-Trial

During the Pre-Trial Conference on 28 September 2020, plaintiff-

On 8 October 2020, plaintiff-appellant filed a Motion for

Hence, the Appeal.

Plaintiff-appellant argues that it was not duly notified of the scheduled

The appeal lacks merit.

Pre-trial is mandatory in nature and the parties and their respective

In the case of BPI Globe BanKo, Inc. A Savings Bank v. Countryside

“Under the Rules of Court, it is explicitly stated that pre-trial is

The mandatory character of pre-trial conferences is underscored by the

In the instant case, the plaintiff-appellant or its authorized

Also, plaintiff-appellant submitted as proof the Certification12 issued

It is worth to emphasize that these Certification, envelope and the small

Notwithstanding, three (3) days before the scheduled Pre-Trial

The foregoing circumstances create a logical doubt as to the veracity of

In view of all the foregoing, We find no reason to relax the strict

WHEREFORE, premises considered, the Appeal filed by plaintiff-

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby

You might also like