REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA
______________ DIVISION

BANK OF THE PHILIPPINE ISLANDS,

Plaintiff-Appellant,
- versus SPS. WILLIAM KHO GO &
JENNIE C. GO,
Defendant-Appellees,

CA-G.R. CV No. 104457

APPELLANTS BRIEF

S.P. MADRID & ASSOCIATES

Counsel for the Petitioner-Appellant
Unit 1911, 19/F Herrera Tower
V.A. Rufino cor. Valero Sts., Makati City
Tel. No. 892-5034 / 542-8104

TABLE OF CONTENTS
Subject

Page

BRIEF STATEMENT OF THE CASE

ASSIGNMENT OF ERRORS

a] It is respectfully submitted that

the Honorable Lower Court committed an
error when it declared in the subject
assailed decision: Acting on the plaintiffs
Motion
for
Reconsideration,
with
Opposition from the defendants, the Court
to DENY the Motion for the following
reasons: (1) as correctly pointed out by the
defendants, it appearing that counsel for
plaintiff in this case is Atty. Victor Ariel
Soliven and suddenly it was Atty. Nadine
Faye Miralles who filed the Motion for
Reconsideration without explaining why
Atty. Soliven did not appear (2) again, as
correctly argued by the defendants
counsel there was no explanation why the
plaintiffs witness, Michael Alvin A.
Gianan, was absent during the hearing on
October 02, 2014, which was one of the
reasons why the instant complaint of the
plaintiff was dismissed, and not merely due
to the absence of the plaintiffs counsel;
(3) neither was there any representative
from the plaintiff during the said hearing
on October 02, 2014 and the same was not
also explained; (4) the alleged absence of
Atty. Nadine Faye C. Miralles as alleged
substitute counsel for plaintiff is not also
substantiated by evidence. Except for her
self-serving declaration in her affidavit of
merit, there is even no photograph or even
police report or traffic incident report that
would support her alleged reason for not
coming to court on time; (5) furthermore,
if it were true that there was such incident,
as alleged by Atty. Miralles, the same
should have been reported to the Court
before the Court have issued the order on
October 02, 2014, and (6) incidentally,
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contrary to the allegation of the plaintiffs

counsel in her Motion for Reconsideration,
this case is not an ex-parte proceeding
because the defendants where never
declared in default. . WHEREFORE, the
Motion for Reconsideration of plaintiff is
DENIED for lack of merit and the Order
dated
October
02,
2014
is
MAINTAINED. The Honorable Lower
Court decided the case without
considering the merits of the case and
deciding the case on the basis of
technicalities.

b] ] It is respectfully submitted that

the Honorable Lower Court
committed an error when it dismissed the
case despite the plaintiff-appellants
willingness intent to prosecute the case.
ARGUMENTS AND DISCUSSION

PRAYER

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CASES CITED
Martin PeOso & Elizabeth PeOso V. Macrosman Dona
(GR No. 154018)
Tan Tiac Chiong v. Hon. Rodrigo Cosico
(AM No. CA-02-33)
Linda M. Chan Kent v. Dionesio C. Micarez, et al.,
(G.R. No. 185758)
Andrew James Mcburnie v. Eulalio Ganzon,
Egi-Managers, Inc and E. Ganzon, Inc.,
(G.R. Nos. 178034 & 178117 G R. Nos. 186984-85)
Anson Trade Center Inc., Anson Emporium Corporation
& Teddy Keng Sc Chen v. Pacific Banking Corporation
(G.R No. 179999)

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10
10
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ANNEXES
Complaint dated August 29, 2012
Pre-trial Order dated Sept. 17, 2014
Order dated October 02, 2014
Motion Reconsideration dated Nov. 17, 2014
Comment/Opposition dated Dec. 17, 2014
Order dated January 26, 2014
Notice of Appeal
3

A
B
C
D
E
F
H

REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA
____________ DIVISION
BANK OF THE PHILIPPINE ISLANDS,
Plaintiff-Appellant,
- versus -

CA-G.R. CV No. 104457

SPS. WILLIAM KHO GO &

JENNIE C. GO,
Defendant-Appellees,
x------------------------------------------------x
APPELLANTS BRIEF
COMES NOW, the herein plaintiff-appellant, Bank of the Philippine
Islands, by the undersigned counsel and before this Honorable Court,
respectfully submit its Appellants Brief, as follows:
BRIEF STATEMENT OF THE CASE
1. This case was initiated with a Complaint dated 29 August 2013 filed
before the Honorable RTC of Makati City and initially assigned to Branch
58;
2. The Complaint emanated from the accountability of defendants as
further specified and delineated in the two causes of actions which are
quoted as follows:
xxx
4. Defendants were issued a BPI Credit Card under
Customer No. 0201003000752824 ; Certified photocopy of the
Terms and Conditions, Application Form and Delivery Receipt
which is hereto attached as Annex B, C and D ;
5. By the terms and conditions governing the issuance and
use of a BPI Credit Card, defendant undertook to pay all charges
incurred through the use of the aforesaid credit card within a
period of twenty (20) calendar days from defendants assigned
cut-off date without the necessity of demand;
6. The defendant is given the option to pay the amount
billed in full or only the minimum payment required in the
statement of account;

7. Should defendant decide to pay only the minimum

payment required, a finance charge of 3.25% based on the average
balance is added to the unpaid balance;
8. On the other hand, should defendant fail to pay on the
due date indicated in the statement of account, an additional late
payment charge of 6% for every month or a fraction of a months
delay is added to the unpaid balance;
9. Defendant availed of plaintiffs credit accommodation by
using the aforesaid credit card;
10. Through the use of the aforesaid credit card,
defendant incurred an outstanding obligation resulting in
plaintiffs principal claim / amount of demand in the sum
P
421,253.01 as of June 12, 2013 per Statement of Account dated
June 12, 2013 is hereto attached as Annexes E and E-1;
11. Based on plaintiffs records, defendants last payment
prior to cancellation of the credit card was on February 12, 2013.
Photocopy of the Statement of Account dated February 12, 2013
showing the last payment made is hereto attached as Annexes F
andF-1;
12. Demands for payment of the outstanding obligation were
made upon defendant, but despite such demands, defendant failed
and refused to settle the obligation. Photocopy of the demand
letter/s sent to and received by the defendant is hereto attached as
Annexes G and G-1;
13. By reason of the foregoing, plaintiff was constrained to
engage the services of counsel and has agreed to pay 25% of
defendants obligation as and by way of attorneys fees exclusive of
appearance fee for every court hearing.
PRAYER
WHEREFORE, it is respectfully prayed before this
Honorable Court, that judgment be rendered against the
defendants by ordering him/her to pay plaintiff, as follows:
a) The principal claim / amount of demand in the sum of P
421,253.01 as of June 12, 2013.
b) The total amount of P 79,433.54 as representing the
3.25% finance charge per month and 6% late payment
charges per month of the said principal claim/amount of
demand, from July 2013 up to August 2013.
c) Finance charge at the rate of 3.25% per month and late
payment charges equivalent to 6% per month or a fraction
6

of months delay starting September 2013, until the

obligation is fully paid;
d) Attorneys fees equivalent to twenty-five percent (25%) of
the total claims due and demandable exclusive of
appearance fee for every court hearing;
e) The costs of suit.
Further, plaintiff prays for other just and equitable reliefs.

[Ref: Complaint dated August 29, 2012, marked as Annex

A]
3. After the Summons and the Complaint was served, defendant filed
their Answer with Counterclaim dated November 12, 2013;
4. The case was then set for Mediation and Judicial Dispute
Resolution. However, in both cases, it produced negative results and no
settlement was reached. Thus, the case was re-raffled and assigned to RTC
Branch 145;
5. During the Pre-trial dated September 17, 2014, the court set the
presentation of the plaintiffs evidence on October 02, 2014;
[Ref: Pre-trial Order dated September 17, 2014 marked as Annex
B]
6. Due to unfortunate circumstances narrated under the plaintiffs
Motion for Reconsideration dated November 17, 2014, the plaintiffs
counsel as well as their witness, Michael Alvin A. Gianan, failed to appear
on October 02, 2014;
7. For failure of the plaintiffs counsel and witness to appear on the
scheduled presentation of plaintiffs evidence, the defendants moved for the
dismissal of the case. The honorable lower court granted the motion and the
case was order dismissed. Hence, the plaintiff filed a Motion for
Reconsideration;
[Ref: Order dated October 02, 2014 marked as Annex C]
[Ref: Motion for Reconsideration dated November 17, 2014 marked
as Annex D]
8. Accordingly, the defendants filed an Opposition to the Motion for
Reconsideration dated November 24, 2014;
[Ref: Opposition dated November 24, 2014 marked as Annex E]

9. From the Opposition, the plaintiff then filed its Comment thereof;
[Ref: Comment/Opposition dated December 17, 2014 marked as
Annex F]
10. Based on the foregoing pleadings filed by both parties, the
Honorable RTC, denied the Motion for Reconsideration of the plaintiff and
affirmed their previous ruling of dismissing the case;
[Ref: Order dated January 26, 2015 marked as Annex G]
11. Hence, a notice of appeal was filed by herein plaintiff dated
February 06, 2015;
[Ref: Notice of Appeal dated February 06, 2015 marked as Annex
H]
ASSIGNMENT OF ERRORS
a] It is respectfully submitted that the Honorable Lower Court
committed an error when it declared in the subject assailed decision: Acting
on the plaintiffs Motion for Reconsideration, with Opposition from the
defendants, the Court to DENY the Motion for the following reasons: (1) as
correctly pointed out by the defendants, it appearing that counsel for
plaintiff in this case is Atty. Victor Ariel Soliven and suddenly it was Atty.
Nadine Faye Miralles who filed the Motion for Reconsideration without
explaining why Atty. Soliven did not appear (2) again, as correctly argued
by the defendants counsel there was no explanation why the plaintiffs
witness, Michael Alvin A. Gianan, was absent during the hearing on
October 02, 2014, which was one of the reasons why the instant complaint
of the plaintiff was dismissed, and not merely due to the absence of the
plaintiffs counsel; (3) neither was there any representative from the plaintiff
during the said hearing on October 02, 2014 and the same was not also
explained; (4) the alleged absence of Atty. Nadine Faye C. Miralles as
alleged substitute counsel for plaintiff is not also substantiated by evidence.
Except for her self-serving declaration in her affidavit of merit, there is even
no photograph or even police report or traffic incident report that would
support her alleged reason for not coming to court on time; (5) furthermore,
if it were true that there was such incident, as alleged by Atty. Miralles, the
same should have been reported to the Court before the Court have issued
the order on October 02, 2014, and (6) incidentally, contrary to the
allegation of the plaintiffs counsel in her Motion for Reconsideration, this
case is not an ex-parte proceeding because the defendants where never
declared in default. . WHEREFORE, the Motion for Reconsideration of
plaintiff is DENIED for lack of merit and the Order dated October 02, 2014
is MAINTAINED. The Honorable Lower Court decided the case without

considering the merits of the case and deciding the case on the basis of
technicalities.
b] It is respectfully submitted that the Honorable Lower Court
committed an error when it dismissed the case despite the plaintiffappellants willingness intent to prosecute the case.
ARGUMENTS AND DISCUSSION
It is with the foregoing presentation that the herein plaintiff
respectfully raises in issue the dismissal of the instant case in this appeal.
I. It is respectfully submitted that the
Honorable Lower Court committed an
error when it declared the assailed
decision. The Honorable Lower Court
decided the case without considering
the merits of the case and deciding on
the basis of technicalities.

12. Our humble assertion is that the trial court is mandated by law to
try the case and resolve the same in its finality without undue regards to
technicality. The Supreme Court held in a plethora of cases that the primary
duty of the courts is to render or dispense justice and not on technicalities for
litigation is not a game of technicalities and must be avoided when such
technicality would impede the cause of justice. The pertinent portions of
which are quoted hereunder:
XXX XXX
Litigations must be decided on their merits and not on technicality.
Every party litigant must be afforded the amplest opportunity for the
proper and just determination of his cause, free from the unacceptable
plea of technicalities. xxx xxx It is a far better and more prudent course of
action for the court to excuse a technical lapse and afford the parties a
review of the case on appeal to attain the ends of justice rather than
dispose of the case on technicality and cause a grave injustice to the
parties, giving a false impression of speedy disposal of cases while actually
resulting in more delay, if not a miscarriage of justice. (Martin Pe Oso v.
Elizabeth Pe Oso & Macrosman Dona, GR No. 154018 April 03, 2007)
XXX XXX
Litigations should, as much as possible, be decided on the merits
and not on technicalities. Since rules of procedure are mere tools designed
9

to facilitate the attainment of justice, their strict and rigid application

which would result in technicalities that tend to frustrate rather than
promote substantial justice must always be avoided. Technicality should
not be allowed to stand in the way of equitably and completely resolving
the rights and obligations of the parties. (Tan Tiac Chiong v. Hon.
Rodrigo Cosico, AM No. CA-02-33, July 31, 2002)
XXX XXX
Verily, the better and more prudent course of action in a judicial
proceeding is to hear both sides and decide the case on the merits instead
of disposing the case by technicalities. What should guide judicial action is
the principle that a party-litigant is to be given the fullest opportunity to
establish the merits of his complaint or defense rather than for him to lose
life, liberty or property on technicalities. The ends of justice and fairness
would best be served if the issues involved in the case are threshed out in a
full-blown trial. Trial courts are reminded to exert efforts to resolve the
matters before them on the merits and to adjudge them accordingly to the
satisfaction of the parties, lest in hastening the proceedings, they further
delay the resolution of the cases. (Linda M. Chan Kent v. Dionesio C.
Micarez, et al., G.R. No. 185758, March 9, 2011.)
XXX XXX
The Rules of Court was conceived and promulgated to set forth
guidelines in the dispensation of justice but not to bind and chain the hand
that dispenses it, for otherwise, courts will be mere slaves to or robots of
technical rules, shorn of judicial discretion. That is precisely why courts in
rendering real justice have always been, as they in fact ought to be,
conscientiously guided by the norm that when on the balance,
technicalities take a backseat against substantive rights, and not the other
way around. Truly then, technicalities, in the appropriate language of
Justice Makalintal, "should give way to the realities of the situation."
(Andrew James Mcburnie v. Eulalio Ganzon, Egi-Managers, Inc and E.
Ganzon, Inc., G.R. Nos. 178034 & 178117 G R. Nos. 186984-85, October
17, 2013)
XXX XXX
13. It is a time-honored principle that in deciding cases, technical and
procedural errors should not be the basis of the judgment. Both parties
should first and foremost be given the chance to argue their causes and
defenses as part of their rights to due process.
14. Based on the foregoing, it is humbly submitted that the plaintiffappellants appeal be given due course and that the Orders of the Honorable
Lower Court be set aside and that the case be decided on its merits.

10

II. It is respectfully submitted that the

Honorable Lower Court committed an
error when it dismissed the case
despite
the
plaintiff-appellants
willingness intent to prosecute the
case.
15.With all due respect, the failure of the counsel of the plaintiffappellant to attend the pre-trial was its first and only lapse. The plaintiffappellant has always been dutifully keeping updates of its cases. In fact,
despite the accident, counsel went to court to sign the minutes to prove its
good faith, diligence and to show interest in pursuing the case.
16. In the case of ANSON TRADE CENTER INC., ANSON
EMPORIUM CORPORATION and TEDDY KENG SC CHEN versus
PACIFIC BANKING CORPORATION GR No. 179999, March 17,
2009, the Supreme Court held that:
It is important to note that the respondent was not remiss in its
duties to prosecute its case. Except for the lone instance of the pre-trial
conference on 10 October 2005, respondent promptly and religiously
attended the hearings set by the RTC. In fact, it appears on the records
that a pre-trial conference in Civil Case No. 01-102198 was first held on 4
April 2005, during which respondent was present. XXX XXX The
actuations of respondent reveal its interest in prosecuting the case, instead
of any intention to delay the proceedings.
In Bank of the Philippine Islands v. Court of Appeals, we ruled that
in the absence of a pattern or scheme to delay the disposition of the case or
a wanton failure to observe the mandatory requirement of the rules, courts
should decide to dispense rather than wield their authority to dismiss.
If Civil Case No. 01-102198 is allowed to proceed to trial, it will not
clog the dockets of the RTC or run counter to the purposes for holding a
pre- trial. Inconsiderate dismissals, even without prejudice, do not
constitute a panacea or a solution to the congestion of court dockets; while
they lend a deceptive aura of efficiency to records of individual judges,
they merely postpone the ultimate reckoning between the parties. In the
absence of clear lack of merit or intention to delay, justice is better served
by a brief continuance, trial on the merits, and final disposition of cases
before the court

11

17. It is humbly submitted that the plaintiff-appellant has a good, valid

and meritorious cause of pursuing the case that is better threshed out in a
full-blown trial.
18. In light of the, it is humbly posited that the subject instant case be
remanded back to the court of origin, and plaintiff-appellant be allowed to
present its evidence, thereafter for the case to proceed and decided
accordingly.
PRAYER
WHEREFORE, based on the foregoing premises, it is respectfully
prayed of this Honorable Court that:
1. The foregoing be noted;
2. The Decision rendered by the Honorable Lower Court be set aside.
3. The subject above-entitled case be remanded back to the
Honorable Court of origin for trial on the merits, commencing with
the presentation of plaintiffs evidence, and thereafter for to be
decided accordingly.
Other reliefs as may be just and equitable are likewise prayed for.
Makati City; June 05, 2015
S.P. MADRID & ASSOCIATES
Counsel for the plaintiff
Unit 1911, 19/F Herrera Tower
V.A. Rufino cor. Valero Streets
Makati City, Metro Manila
Tel. No. 892-5034 / 717-5200
By:
SIMEON P. MADRID
Roll No. 31543
PTR No.: 4748607; 01-05-15; Mkti.
IBP No.: 0983655; 01-06-15; Mkti.
MCLE Compliance No. IV-0007944; 09-08-2012 (2013-2015)
COPY FURNISHED:
ATTY. ROGELIO N. VELARDER
Counsel for the Defendants
Suite 8B, 3rd Floor, Aurelio Building
Rizal Ave. Ext. cnr 9th Avenue
12

Grace Park, Caloocan City

EXPLANATION
Pursuant to Section 11, Rule 13 of the Rules of Court, 1997 Rules of Civil Procedure, a copy of
this Comment was served to the above adverse parties / counsel by Registered Mail and not by personal
service due to time constraints and the distance of counsels office from the office of the undersigned and
considering further, the shortage of available manpower to effect service of said Comment by personal
delivery.

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