Republic of the Philippines

REGIONAL TRIAL COURT

5th Judicial Region
Ligao City
Branch 11

ATENOGENES R. NUEZ AND

JULIETA R. NUEZ,
Plaintiffs,

CIVIL CASE NO. 2619

ANNULMENT OF DEED OF SALE
--VERSUS-- AND TAX DECLARATIONS,
RECOVERY OF POSSESSION,
DAMAGES, AND INJUNCTIVE
RELIEF

ERMAR B. CEGUERRA AND THE

MUNICIPAL ASSESSOR OF
LIBON, ALBAY,
Defendants.
x- ------------------------------------------x

MOTION TO DISMISS

COMES NOW the defendant Ermar B. Ceguerra, by its

undersigned counsel, and respectfully moves this Honorable Court to

dismiss the complaint in the above-entitled case on the ground that the

same does not, insofar as it relates to him, state a cause of action :

I. Statement of Facts

Defendant Ermar B. Ceguerra is, in fact, in actual possession of

the subject property and acquired the same in good faith and for value

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from Perseverando Nuez on 21 September 2007. A copy of a duly

notarized Deed of Absolute Sale and Tax Declaration No. 2003-04-

059 are heretofore attached as Annex 1 and Annex 2,

respectively.

That the Defendant registered his right as the absolute and

lawful owner of the subject lot with the Municipal Assessors Office

of Libon, Albay, which recorded the same and issued a new Tax

Declaration in his name after payment of all the necessary and

required taxes and fees for the purchase of the subject lot in question.

A copy of the new Tax Declaration with Property Index No.

0310700401062 is attached hereto as Annex 3 and made an

essential part hereof. Considering that the Municipal Assessor of

Libon, Albay issued the new Tax Declaration of Real Property for the

253-square meter lot in the name of the Defendant, the same has

authenticated the legitimacy of the latters purchase of the subject

property and of ownership of the same by the seller thereof.

As such, the new Tax Declaration enjoys the presumption of

validity under the law and has a strong probative value as it was

accompanied by proof of actual possession by the Defendant. As

regards the allegations contained in paragraph 6 of the complaint that

the Plaintiffs alleged claim of ownership was by virtue of giving

from their father, Luis Nuez, the same was merely an addendum of

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the Plaintiffs and thus hearsay considering that they failed to allege

what mode and under what written instruments said conveyances were

made.

Plaintiffs likewise failed to attach to their complaint any

written contracts covering the purported sale of Teodora Nuez

Segarras 105 square meter lot and Florecita Nuezs 210 square

meter lot to Plaintiff Atenogenes Nuez. In addition, no payment of

the required capital gains tax and of the subsequent recording of said

sale with the Municipal Assessors Office of Libon, Albay was ever

made by Plaintiff Atenogenes Nuez.

II. Complaint States No Cause of Action As Against

Ermar B. Ceguerra

A meticulous review of the purported Deed of Sale dated 21

April 2006 between Perseverando Nuez and Plaintiff Atenogenes

Nuez, reveals that the same was not signed by Rosa Regondola-

Nuez, Perseverandos wife. As such, the alleged sale of the subject

lot to Plaintiff Atenogenes Nuez is void by reason of the conjugal

nature of the subject property. Neither of the spouses can impede nor

dispose by acts inter vivos a property owned by them in community

without the consent of the other.

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 It is likewise worth noting that there appears to be an obvious

forgery of the purported signature of Perseverando Nuez in the Deed

of Absolute Sale dated 21 April 2006, which might explain that fraud

took part in the alleged sale and the reason why no signature of Rosa

Regondola-Nuez was affixed to signify her marital consent on the

sale.

That the subject lot in question is situated in along Betts Street,

Zone 4 Libon, Albay as evidenced by the attached Tax Declarations.

In addition, specifically in paragraphs 11, 12, 13, 14, 15, 16,

and 17 of the complaint does not contain direct statements of the

ultimate facts constituting the Plantiffs cause of action, in violation of

Rule 8, Section 1, paragraph 1 of the 1997 Rules of Civil Procedure

which provides that every pleading shall contain in a methodical and

logical form a plain, concise and direct statement of the ultimate facts,

omitting the statement of mere evidentiary facts. As the ultimate facts

are not alleged, the cause of action is insufficient. As such is a ground

for the dismissal of the herein complaint.

That the Plaintiffs, in paragraph 5 of the complaint, again failed

to allege any ultimate fact that would indicate that Luis Nuez,

Plaintiffs alleged father and predecessor-in-interest, was indeed the

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owner of the 6,673-square meter parcel of land from which the

questioned property, Defendants lot, came from.

Consequently, without the aforesaid allegation of ultimate fact,

Plaintiffs acquisition of the subject property from their alleged father,

Luis Nuez, would be without sufficient legal basis and therefore

Plaintiffs has no cause of action against the herein Defendant.

In Section 1(c), Rule 16 of the 1997 Rules of Civil Procedure which

provides:

Within the time for but before

filing the answer to the complaint
or pleading asserting a claim, a
motion to dismiss may be made on
any of the following grounds:

(c) That venue is improperly laid;

The herein complaint is therefore DISMISSIBLE.

III. PRAYER

WHEREFORE, the defendant respectfully prays that

judgment be rendered in his favor by dismissing the complaint and

granting the defendants counterclaim by awarding defendant (a) One

Hundred Thousand Pesos as Moral Damages, and (b) Fifty Thousand

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 as Attorneys Fees, appearance fee of P 3,000 for each court hearing (c)

and the cost of litigation, all of which should be assessed against

Plaintiffs as penalty for filing such unfounded and harassment

complaint.

Other reliefs just and equitable under the premises are also

prayed for.

August 29, 2010, Ligao City, Albay Province

JASMINE M. MONTERO
Counsel for Defendant
Tierra Pura St., Libon, Albay
Roll of Attorneys No. 42647
PTR No. 3455917/1-3-10/Albay
IBP Lifetime No. 04313/01-13/03
MCLE Compliance No. I-0008992

VERIFICATION AND CERTIFICATION

I, ERMAR B. CEGUERRA, Filipino, of legal age, and

residing at San Miguel Street, Libon, Albay, after having been sworn

in accordance with law, depose and state that:

1) I am the defendant the above-mentioned case and have caused the

preparation of the foregoing answer;

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2) I have read and understood the allegations therein and the same are

true and correct of my own personal knowledge and/or based on

authentic records;

3) I attest to the authenticity of the annexes hereof;

4) I have not commenced any action or filed any claim involving the

same issues in any court, tribunal or quasi-judicial agency and, to the

best of my knowledge, no such other action or claim is pending

therein;

5) If there is such other pending action or claim, I will furnish this

Honorable Court with a complete statement of the present status

thereof; and

6) If I should thereafter learn that the same or similar action or claim has

been filed or is pending, I shall report that fact within five (5) days

therefrom to his Honorable Court wherein my aforesaid answer has

been filed.

IN WITNESS WHEREOF, I have hereunto set my hand this (29), of

(August), 2010 at (Ligao City, Albay), Philippines.

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 ERMAR B. CEGUERRA

Defendant

SUBSCRIBED AND A SWORN TO before me on this (29) of

(August ) 2010 at Polangui, Albay; Affiant having exhibited to me her

CTC No. 4793763A issued on June 11, 2010 at Ligao City, Albay

Province

MARITA MAURICIO
Notary Public
My Commission expires Dec. 31, 2010
Roll of Attorney No. 39876
IBP LIFETIME MEMBER
PTR No. 7879876, (3-17-10) , (Albay)

Doc. No. 83;

Page No. 4 ;
Book No. 8;
Series of 2010;

REQUEST FOR HEARING

The Branch Clerk of Court

Regional Trial Court
Ligao City
Branch 11

Greetings:

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 Please submit the foregoing MOTION TO DISMISS for the
consideration and approval of this Honorable Court on 10 September
2010, Friday, at 8:30 in the morning.

LUISA M. SALES

NOTICE OF HEARING

ATENOGENES R. NUEZ
Gabon, Polangui, Albay

JULIETA R. NUEZ
Betts St. Extension,
Libon, Albay

Greetings:

Please be informed that the foregoing MOTION TO DISMISS

is set for the consideration and approval of this Honorable Court on 10
September 2010, Friday, at 8:30 in the morning.

LUISA M. SALES

Copy furnished by Registered Mail:

ATENOGENES R. NUEZ
Gabon, Polangui, Albay

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JULIETA R. NUEZ
Betts St. Extension,
Libon, Albay

EXPLANATION

Due to lack of material time and personnel, a copy of this

pleading was served on plaintiffs by registered mail.

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