THIRD DIVISION
[A.C. No. 12445. October 13, 2021.]
BRENDA U. CASTILLO, complainant,vs. ATTY. MARCEL G. SILVESTRE, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedOctober 13, 2021, which reads as follows:
"A.C. No. 12445 (BRENDA U. CASTILLO, complainant, v. ATTY. MARCEL G. SILVESTRE, respondent.) — It is the duty of every notary public to ensure that all parties executing a document to be acknowledged appear before them. Failure to do so is a serious transgression of the notarial rules which cannot be met with leniency.
This Court resolves the Complaint 1 for disbarment filed by Brenda U. Castillo (Brenda) against Atty. Marcel G. Silvestre (Atty. Silvestre) arising from his notarization of two documents: (1) an Irrevocable Special Power of Attorney, and (2) a Deed of Undertaking. 2
The two documents were purportedly executed by Brenda and her husband, Emmanuel M. Castillo (Emmanuel), (collectively, the Castillo Spouses) and notarized by Atty. Silvestre on April 13, 2012. 3 However, Brenda alleged that this was impossible since Emmanuel died on April 9, 2012. 4 As proof, Brenda submitted a copy of Emmanuel's Certificate of Death 5 and a Certification from St. Peter Memorial Chapels of memorial services held from April 9 to 14, 2012. 6
The Irrevocable Special Power of Attorney authorized Golden Sun Finance Corporation (Golden Sun Finance) to receive the proceeds of Emmanuel's monthly Social Security System (SSS) pension and withdraw from his Metrobank Savings Account No. 559-3-559-006158, Xavierville, Quezon City Branch, 7 while the Deed of Undertaking obliged Brenda to deliver to Golden Sun Finance her own savings account passbook or ATM card as Emmanuel's beneficiary. 8
In a February 6, 2013 Order, Deputy Director for Bar Discipline Dennis A. B. Funa ordered Atty. Silvestre to submit his answer to the complaint within 15 days. 9
On March 14, 2013, Atty. Silvestre filed a Motion for Extension of Time to File Answer and/or Responsive Pleading, praying for an extension of 20 days or until April 3, 2013 to file his answer. 10 On April 3, 2013, he filed a Motion for Additional Time to File Answer and/or Responsive Pleading for another five days, or until April 8, 2013, to file his answer. 11
In his April 8, 2013 Answer, 12 Atty. Silvestre admitted to notarizing the two documents and including them in his 2012 Notarial Report. 13 He explained that on April 13, 2012, Lorelie J. Salenga (Salenga), the branch manager of a nearby Golden Sun Finance office, brought him the Irrevocable Special Power of Attorney and Deed of Undertaking already bearing the signatures of the Castillo Spouses. 14 Along with Salenga were Jonathan G. Rebadajo (Rebadajo) and Melinda M. Quesada (Quesada) who signed as witnesses in the Irrevocable Special Power of Attorney before Atty. Silvestre. Salenga likewise signed the documents in Atty. Silvestre's presence. 15
Atty. Silvestre noted that before notarizing the documents, he asked Salenga, Rebadajo, and Quesada a number of questions, including:
a. Who affixed the signatures above the typewritten names of Mr. Emmanuel M. Castillo and Mrs. Brenda U. Castillo?
b. W[e]re these signatures affixed by Mr. Emmanuel M. Castillo and Mrs. Brenda U. Castillo?
c. Who were present when they affixed their signatures?
d. Was there any competent evidence or proof of their identities? 16
Salenga replied that the Castillo Spouses signed the two documents at the Golden Sun Finance office after presenting Emmanuel's SSS Identification Card No. 03-3834556-3 and Brenda's Barangay Certification and Senior Citizen Identification Card as proof of identities. Salenga, Rebadajo, and Quesada also told Atty. Silvestre that the CCTV installed inside their office recorded the signing of the documents. 17
Atty. Silvestre then verified Emmanuel and Brenda's signatures on the two documents by comparing them with the identification cards and the Golden Sun Finance Corporation Credit Application and Promissory Note signed by the Castillo Spouses. After verifying the signatures, Atty. Silvestre notarized and retained copies of the documents. 18
Upon receipt of the complaint, Atty. Silvestre conducted an inquiry on the matter. He found that Emmanuel applied for a loan with Golden Sun Finance for P216,000.00. Emmanuel then assigned and surrendered his SSS pension from his Metrobank Savings Account to Golden Sun Finance as security for his loan. When Golden Sun Finance discovered Emmanuel's death on April 17, 2012, the pension proceeds had already been released to Brenda. Thus, Emmanuel's obligation with Golden Sun. Finance remained unsatisfied, prompting the latter to file a criminal case for estafa against Brenda. 19
Atty. Silvestre maintained that he had no knowledge of Emmanuel's death when the documents were brought to him for notarization, especially since he was not privy to the contract between the parties. He asserted that he only learned that Emmanuel had passed away at the time of notarization when the disciplinary complaint was filed against him. To rectify his error, he requested for the immediate cancellation and withdrawal of the subject documents from his Notarial Report. 20
A mandatory conference was held on February 28, 2014, where then Integrated Bar of the Philippines Commissioner Mario V. Andres directed the parties to submit their respective position papers within 10 days. 21
Brenda submitted a Manifestation, stating that the pieces of documentary evidence presented were sufficient to establish the charges against Atty. Silvestre and praying that the case be submitted for resolution. 22
Following the death of the former handling commissioner, Commissioner Peter M. Bantillan issued a January 30, 2017 Order directing the parties again to file their respective position papers. However, the copy of the Order sent to Atty. Silvestre was returned unserved with the notation "moved out[.]" Hence, no position paper was filed by Atty. Silvestre. 23
In a January 26, 2018 Report and Recommendation, 24 Commissioner Nelly Annegret Puno-Yambot (Commissioner Puno-Yambot) found that Atty. Silvestre was remiss in his duties as a notary public and as a lawyer when he notarized the subject documents without the presence of the affiants, in violation of Rule II, Section 1 of the 2004 Rules on Notarial Practice. 25 Atty. Silvestre could not invoke good faith as an excuse in notarizing the documents considering that: (1) he did not actually see the affiants affix their signature on the documents, and (2) he did not ascertain the affiants' identities. Otherwise, Atty. Silvestre would have discovered that one of the affiants was dead. 26 Commissioner Puno-Yambot recommended the penalty of suspension from the practice of law for a period of six months, immediate revocation of notarial commission, and disqualification from appointment as notary public for two years. 27
In its July 12, 2018 Resolution, the Integrated Bar of the Philippines Board of Governors adopted the findings of Commissioner Puno-Yambot with modification. It found that Atty. Silvestre's show of remorse and immediate act of correcting his mistake warranted the reduction of his penalty to reprimand. 28
The sole issue for this Court's resolution is whether or not respondent Atty. Marcel G. Silvestre violated the 2004 Rules on Notarial Practice and the Code of Professional Responsibility in notarizing documents without requiring the presence of the affiants.
After a careful examination of the records, this Court adopts the January 26, 2018 Report and Recommendation finding respondent guilty of notarizing the documents without the presence of the affiants.
Rule II, Section 1 of the 2004 Rules on Notarial Practice requires an affiant to appear before a notary public for acknowledgments:
SECTION 1. Acknowledgment. — "Acknowledgment" refers to an act in which an individual on a single occasion:
(a) appears in person before the notary public and presents an integrally complete instrument or document;
(b) is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and
(c) represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity, that he has the authority to sign in that capacity. (Emphasis supplied)
Rule IV, Section 2 (b) also provides:
SECTION 2. Prohibitions — . . .
(b) A person shall not perform a notarial act if the person involved as signatory to the instrument or document —
(1) is not in the notary's presence personally at the time of the notarization; and
(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.
These requirements are necessary to ensure the authenticity and reliability of notarized documents. Anudon v. Atty Cefra29 further explained why the actual presence of the contracting parties is essential:
Notarization is the act that ensures the public that the provisions in the document express the true agreement between the parties. Transgressing the rules on notarial practice sacrifices the integrity of notarized documents. It is the notary public who assures that the parties appearing in the document are the same parties who executed it. This cannot be achieved if the parties are not physically present before the notary public acknowledging the document. 30
Through notarization, one can guarantee that the document reflects the true intentions and agreement between the parties thereon precisely because it is executed before a notary public. In Joson v. Atty. Baltazar: 31
Notarization of a private document converts such document into a public one, and renders it admissible in court without further proof of its authenticity. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private instrument. Notarization is not an empty routine; to the contrary, it engages public interest in a substantial degree and the protection of that interest requires preventing those who are not qualified or authorized to act as notaries public from imposing upon the public and the courts and administrative offices generally. 32 (Citations omitted)
Here, respondent admitted to notarizing the subject documents without the presence of the affiants. His efforts to verify the signatures of the affiants through documents and identification cards brought by Salenga cannot cure the defect of the affiants' absence. The purpose of respondent's duty is precisely to protect against the falsification of documents. Since respondent did not actually see the affiants affix their signatures on the documents, he had no way to verify the genuineness of the signatures.
The bare claim of the witnesses that there was CCTV footage of the spouses signing the documents, even if true, does not justify their absence during notarization. A notary public cannot rely upon mere self-serving declarations of one party to a contract that the other party actually signed the instrument. Moreover, respondent's reason that he was not informed by Golden Sun Finance, the heirs of Emmanuel, or the Quezon City Notarial Office that Emmanuel has died at the time of the notarization is of no moment. 33 None of them were obliged to apprise him of the status of his affiants, as respondent is the one who has the duty to ensure that affiants are personally before him at the time of notarization. The wording of the law leaves no room for interpretation: the affiant "appears in person before the notary public." 34 Accordingly, there is no justification which can absolve respondent of his transgression. The act of notarization is imbued with public interest, and to disregard its rules casts a shadow on the integrity not only of the document involved, but also of the whole notarial system.
Respondent also violated Canon 1 of the Code of Professional Responsibility that "[a] lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and for legal processes" in failing to apply the standards expected of a notary public. His act of affixing his notarial seal and signature on the Irrevocable Special Power of Attorney and Deed of Undertaking misled the public to believe that the Castillo Spouses actually executed and signed the two documents. Such conduct "is fraught with dangerous possibilities considering the conclusiveness on the due execution of a document that our courts and the public accord on notarized documents." 35 The significance of the veracity and due execution of the subject documents is emphasized by the fact that Golden Sun Finance later filed a criminal complaint for estafa against complainant based on the loan transaction between the parties. While respondent believed that he had rectified his mistake, the damage to complainant has been done.
Under Rule XI, Section 1 of the Rules on Notarial Practice, the revocation of a notarial commission, along with other administrative sanctions, is proper when a notary public:
(7) fails to require the presence of a principal at the time of the notarial act;
(8) fails to identify a principal on the basis of personal knowledge or competent evidence;
xxx xxx xxx
(10) knowingly performs or fails to perform any other act prohibited or mandated by these Rules[.]
In Gonzales v. Atty. Bañares, 36Heir of Unite v. Atty. Guzman, 37 and Lopez v. Atty. Mata, 38 where the respondents notarized documents without the presence of the parties, this Court found the penalty of suspension from the practice of law for six months, revocation of their notarial commission, and disqualification as notaries for two years, proper.
WHEREFORE, respondent Atty. Marcel G. Silvestre is found GUILTY of notarizing the April 13, 2012 Irrevocable Special Power of Attorney and Deed of Undertaking in the absence of the affiants. Accordingly, this Court SUSPENDS him from the practice of law for six months, REVOKES his notarial commission, if any, and DISQUALIFIES him from being commissioned as a notary public for two years. Respondent is also STERNLY WARNED that any similar infraction will be dealt with more severely.
Let copies of this Resolution be entered in the record of respondent and served on the Integrated Bar of the Philippines, as well as on the Court Administrator who shall circulate it to all courts for their information and guidance.
SO ORDERED." (Carandang, J., on official leave; Dimaampao, J., additional Member per Special Order No. 2839 dated September 16, 2021)
By authority of the Court:
(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court
Footnotes
1.Rollo, pp. 2-4.
2.Id.
3.Id. at 2.
4.Id.
5.Id. at 5.
6.Id. at 9.
7.Id. at 6-7.
8.Id. at 8.
9.Id. at 10.
10.Id. at 11-12.
11.Id. at 14-15.
12.Id. at 18-22.
13.Id. at 18.
14.Id. at 18-19.
15.Id. at 19.
16.Id.
17.Id.
18.Id. at 19-20.
19.Id. at 21.
20.Id. at 20-21.
21.Id. at 36.
22.Id. at 37.
23.Id. at 47.
24.Id. at 45-51.
25.Id. at 47-48.
26.Id. at 48-49.
27.Id. at 51.
28.Id. at 43.
29. 753 Phil. 421 (2015) [Per J. Leonen, En Banc].
30.Id. at 430.
31. 271 Phil. 880 (1991) [Per J. Feliciano, Third Division].
32.Id. at 885.
33.Rollo, p. 20.
34. Notarial Prac. Rule, Rule II, Sec. 1.
35.Bautista v. Atty. Bernabe, 517 Phil. 236, 240 (2006) [Per J. Ynares-Santiago, First Division].
36. 833 Phil. 578 (2018) [Per J. Peralta, Second Division].
37. 834 Phil. 724 (2018) [Per J. Perlas-Bernabe, Second Division].
38. A.C. No. 9334, July 28, 2020, <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/66436> [Per J. Lazaro-Javier, First Division].