FIRST DIVISION
[A.C. No. 11820. November 10, 2020.]
MARILYN C. ALENTAJAN, complainant,vs. ATTY. ALEXIS A. MOLAER, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated November 10, 2020which reads as follows:
"A.C. No. 11820 — (MARILYN C. ALENTAJAN, complainant v. ATTY. ALEXIS A. MOLAER, respondent.) — For the Court's resolution is the Complaint-Affidavit 1 filed by Marilyn C. Alentajan (complainant) against Atty. Alexis A. Molaer (respondent), charging him of engaging in unlawful, dishonest, immoral or deceitful conduct in violation of Canon 1, Rule 1.01 2 and Canon 10, Rule 10.01 3 of the Code of Professional Responsibility (CPR).
The Antecedents
Complainant alleged that on April 10, 2012, respondent sent her a letter, deliberately and maliciously composed, demanding payment of an inexistent debt. 4 Therein, respondent threatened her that his client "has finally decided to file in court the said appropriate complaint" for her failure to pay the amount of P69,264.19, allegedly corresponding to her overdue and unpaid Bankard account, Bankard Credit Card No. 1191201000940194. She further alleged that by enclosing a copy of a civil complaint, respondent was not only threatening her but also blackmailing her. 5 Alleging that respondent committed gross misconduct, dishonesty, and deceit, she filed a case for disbarment with the Integrated Bar of the Philippines (IBP), which was docketed as Commission on Bar Discipline (CBD) Case No. 12-3443. 6
In his defense, respondent alleged that their law firm handles collections of unpaid credit cards and personal loan accounts endorsed by different banks, one of which is Bankard, Inc.; Bankard, Inc. endorsed to their firm the unpaid and overdue balance of complainant in her credit card in the amount of P69,264.19; the demand letter is not maliciously falsified and fabricated but a factual letter. Respondent further averred that the letter is not threatening for it merely states that should complainant refuse to pay her just and valid obligation, a complaint for a sum of money will be filed against her. Finally, respondent claimed that the filing of a complaint for failure to pay is not a blackmail but a standard cause of action the firm takes to protect the interest of its clients. 7
IBP Commissioner's Report and Recommendation
In his Report and Recommendation 8 dated June 18, 2013, IBP Investigating Commissioner Salvador B. Belaro, Jr., recommended the dismissal of the complaint for disbarment on the ground that the demand letter sent to complainant has factual basis. 9
IBP Board of Governor's Ruling
In a Resolution dated October 11, 2014, 10 IBP Board of Governors reversed and set aside the recommendation of the Investigating Commissioner and imposed upon respondent a sanction of suspension from practice of law for six months. The Resolution reads:
xxx xxx xxx
RESOLUTION NO. XXI-2014-771
RESOLVED to REVERSE as it is hereby REVERSED and SET ASIDE, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution as Annex "A", and for Respondents unscrupulous practice of sending a threatening demand letter to credit card holders, Atty Alexis A. Molaer is hereby SUSPENDED from the practice of law for six (6) months.11
Aggrieved, respondent moved for reconsideration. 12 It was, however, denied in a Resolution 13 promulgated on April 29, 2016.
Again undaunted, respondent filed a second motion for reconsideration. 14 In another Resolution 15 promulgated on January 26, 2017, the IBP Board of Governors denied the motion and affirmed its October 11, 2014 Resolution.
Issue
The sole issue is whether or not there is sufficient basis to hold respondent administratively liable for gross misconduct, dishonesty and deceit, and suspend him from the practice of law.
The Court's Ruling
Preliminarily, it bears pointing out that pursuant to the amendment of Rule 139-B under Bar Matter No. 1645, dated October 13, 2015, the procedure for the review of the IBP Board of Governors resolution has dispensed with the filing of a motion for reconsideration or a petition for review. This is in line with the principle that only the Court has the power to impose disciplinary actions on the members of the bar, and any resolution on the part of the IBP is merely recommendatory. 16
Accordingly, it was unnecessary for respondent to file a petition for certiorari under Rule 65 of the Rules of Court. Instead, the Court shall proceed to take final action on the complaint and the IBP Board of Governors Resolution reversing the report and recommendation of the Investigating Commissioner.
On this premise, the Court disagrees with the Resolution of the Board of Governors reversing and setting aside the IBP Commissioner-Investigator's Report and Recommendation, and suspending respondent from the practice of law.
The IBP Board of Governors
Due process requires that the parties to a litigation should be informed of how it was decided, with an explanation of the factual and legal reasons that led to the conclusions of the court. 17 This rule is rooted in Section 14, Article VIII of the 1987 Constitution, which states:
Section 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.
This, in relation to the duty of the Board of Governors of the IBP, is statutorily expressed in Section 12-B, Rule 139, of the Rules of Court, as amended by Bar Matter No. 1645, 18 to wit:
Rule 139-B. Disbarment and Discipline of Attorneys
xxx xxx xxx
Section 12. Review and recommendation by the Board of Governors. —
(a) Every case heard by an investigator shall be reviewed by the IBP Board of Governors upon the record and evidence transmitted to it by the Investigator with his report.
(b) After its review, the Board, by the vote of a majority of its total membership, shall recommend to the Supreme Court the dismissal of the complaint or the imposition of disciplinary action against the respondent. The Board shall issue a resolution setting forth its findings and recommendations, clearly and distinctly stating the facts and the reasons on which it is based. The resolution shall be issued within a period not exceeding thirty (30) days from the next meeting of the Board following the submission of the Investigator's report.
(c) The Board's resolution, together with the entire records and all evidence presented and submitted, shall be transmitted to the Supreme Court for final action within ten (10) days from issuance of the resolution.
(d) Notice of the resolution shall be given to all parties through their counsel, if any.
xxx xxx xxx (Emphasis supplied)
Furthermore, in Bar Matter No. 1755, the Court, en banc, clarified that:
xxx xxx xxx
If the imposable penalty is suspension from the practice of law or disbarment, the BOG shall issue a resolution setting forth its findings and recommendations. The aggrieved party can file a motion for reconsideration of said resolution with the BOG within fifteen (15) days from notice. The BOG shall first resolve the incident and shall thereafter elevate the assailed resolution with the entire case records to this Court for final action. If the 15-day period lapses without any motion for reconsideration having been filed, then the BOG shall likewise transmit to this Court the resolution with the entire case records for appropriate action.
xxx xxx xxx (Emphasis supplied)
In the instant case, the IBP Board of Governors issued the minute resolutions without explaining how it arrived thereat. There were no findings of fact or explanation to justify the reversal of the IBP Commissioner-Investigator's report and recommendation, and the suspension of respondent from the practice of law for six months.
In Cruz v. Cabrera, 19 the Court reiterated the importance of the requirement that the decision of the IBP Board of Governors must state the facts and the reasons on which such decision is based, which is akin to what is required of the decisions of courts of record, thus:
[A]side from informing the parties the reason for the decision to enable them to point out to the appellate court the findings with which they are not in agreement, in case any of them decides to appeal the decision, it is also an assurance that the judge, or the Board of Governors in this case, reached his judgment through the process of legal reasoning. 20
From the foregoing, this Court holds and so rules that the IBP Board of Governors erred when it issued the October 11, 2014 Resolution reversing the commissioner's report and recommendation, as well as, the succeeding April 29, 2016, and January 26, 2017 Resolutions denying respondent's motions for reconsiderations. Accordingly, these resolutions, which recommended respondent's suspension from the practice of law for six months, cannot be adopted by this Court.
The Court adopts the findings
To recall, complainant claims that the demand letter, with an attached copy of a complaint allegedly filed, contains false and fabricated statements made to harass and blackmail her into parting with her hard-earned money; and that by doing so, respondent violated the CPR, particularly Rule 1.01, Canon 1, as well as Rule 10.01, Canon 10 thereof.
Now, Rule 1.01, Canon 1 of the CPR, reads:
CANON 1 — A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW OF AND LEGAL PROCESSES.
Rule 1.01 — A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
Meanwhile, Rule 10.01, Canon 10 states:
CANON 10 — A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE COURT.
Rule 10.01 — A lawyer shall not do any falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the Court to be misled by any artifice.
After careful review of the records of this case, this Court rules that respondent committed no violation of the above-quoted rules of the CPR.
At the outset, this Court takes judicial notice that banks offering loans and credit accommodations through credit cards are engaging the services of law firms and/or lawyers to act as their collecting agents for unpaid loans and credit card balances. As such, these law firms and/or lawyers use different means to exact payment from bank clients, the most common of which is through serving demand letters.
In the instant case, respondent, as the collecting agent of Bankard, Inc., sent a letter to complainant demanding the latter to pay the unpaid balance of her credit card. Contrary to complainant's bare denial, respondent was able to present statements of account 21 clearly indicating that complainant owns and uses a credit card from Bankard, Inc., for personal consumption. These statements also show that complainant was indeed indebted to Bankard, Inc., for failure to pay her outstanding balance in her credit card.
Furthermore, a simple perusal of the complaint for sum of money attached to the letter will show that the complaint has yet to be filed. This is evidenced by the following established facts: first, the said pleading was, although signed by respondent, not signed by the authorized representative of Bankard, Inc. Needless to state, an unsigned pleading is a mere scrap of paper and produces no legal effect. 22 Second, there was neither a "Received" stamped by any court nor a case number that will affirm to the filing of the complaint in court. Finally, there was a certification from the Metropolitan Trial Court that no case against complainant was pending in court.
As things are, the demand letter reads in part:
xxx xxx xxx
For your serious consideration and guidance, the demands you received, for the payment of your due and demandable obligation to Bankard, Inc. has been unjustifiably ignored. Hence, our said client has finally decided to file in court the said appropriate complaint thru its authorized Representative against you, and your spouse, if any. Photocopy of said civil complaint, is hereto attached.
Your spouse, if any, shall be included as mandatory party-defendant in the Sum of Money Case, to be filed in court pursuant to Rule 3, Sec. 4 of the New Rules of Court.
Nevertheless, we are giving you a non-extendible period of two (2) days from receipt hereof.
xxx xxx xxx (Emphasis supplied)
The phrase used in the letter, "has decided to file," is clear and leaves no room for further interpretation. Otherwise stated, it does not, in any way, mean that Bankard, Inc. has already filed a case. What it only means is that it has merely decided to do so. It may, therefore, be deduced from the letter that respondent opted to attach the copy of the unsigned complaint that he, in behalf of Bankard, Inc., will file in case of non-payment of her financial obligation. Thus, the phrase, "to be filed in court." This, notwithstanding, the same demand letter gives complainant one last chance to settle her obligations before filing the case in court.
From all the foregoing, this Court agrees with the IBP Commissioner-Investigator that the demand letter has factual basis and not made to merely harass complainant. Respondent, therefore, did not commit any fabrication nor falsification to threaten and blackmail complainant. Corollarily, respondent committed no violation of the CPR. He did not engage in any unlawful, dishonest, immoral or deceitful conduct. Nor did he engage in any conduct that adversely reflects on his fitness to practice law.
On a final note, the Lawyer's Oath enjoins every lawyer, not just to obey the laws of the land, but also to refrain from doing any falsehood in or out of court or from consenting to the doing of any in court, and to conduct himself according to the best of his knowledge and discretion with all good fidelity to the courts, as well as to his clients. All lawyers are servants of the law, and have to observe and maintain the rule of law, as well as be exemplars worthy of emulation by others. It is by no means a coincidence, therefore, that the CPR emphatically reiterates the core values of honesty, integrity, and trustworthiness. 23 In this case, respondent clearly did not commit any violation of his Lawyer's Oath.
WHEREFORE, in view of the foregoing premises, the Complaint for Disbarment filed by Marilyn C. Alentajan against Atty. Alexis A. Molaer is DISMISSED for lack of merit.
Let copies of this Resolution be furnished the Office of the Bar Confidant, to be appended to Atty. Alexis A. Molaer's personal record as attorney. Likewise, copies shall be furnished the Integrated Bar of the Philippines and all courts in the country for their information and guidance.
SO ORDERED."
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
by:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1.Rollo, pp. 2-5.
2.Rule 1.01 — A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
3. Rule 10.01 — A lawyer shall not do any falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the Court to be misled by any artifice.
4.Rollo, p. 3.
5.Id.
6.Id. at 3-4.
7.Id. at 30-35.
8.Id. at 323-325.
9.Id. at 325.
10.Id. at 326.
11.Id.
12.Id. at 327-329.
13.Id. at 330.
14.Id. at 331-335.
15.Id. at 336.
16.Torres v. Atty. Dalangin, 822 Phil. 80, 96 (2017).
17.Nicos Industrial Corporation v. Court of Appeals, 283 Phil. 12, 18 (1992).
18. Promulgated on October 13, 2015.
19. 484 Phil. 173 (2004).
20.Id. at 181, citing Atty. Teodosio v. Nava, 409 Phil. 466, 474 (2001).
21.Rollo, pp. 36-81.
22. RULES OF COURT, Rule 7, Section 3.
23.Lim v. Mendoza, A.C. No. 10261, July 16, 2019.