FIRST DIVISION
[A.C. No. 11141. August 7, 2019.]
ELEANOR C. ESCOBAR, complainant, vs.ATTY. MARLON B. MERCADO, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated August 7, 2019which reads as follows:
"A.C. No. 11141 (Eleanor C. Escobar v. Atty. Marlon B. Mercado)
This administrative case emanated from a Letter Complaint 1 filed by Eleanor C. Escobar (complainant) before the Court against Atty. Marlon B. Mercado (respondent) for violation of the 2004 Rules on Notarial Practice (Rules).
Antecedents
Complainant is the registered owner of a four (4)-door apartment unit located at Facundo Street, Barangay Pio Del Pilar, Makati City and covered by Transfer Certificate of Title (TCT) No. 171780 (subject property). On January 29, 2006, complainant went to the United States of America. Complainant asked her relatives, Sam Escobar and Nancy Escobar (Nancy), to manage the property in her absence. In return, they were allowed to enjoy the fruits or rentals of the property to support themselves. 2
On February 7, 2007, while complainant was in Germany, Nancy filed a loan application for P2,000,000.00 under complainant's name before the Manila Credit Corporation (MCC) without complainant's knowledge, consent, and authority. The loan application stated that complainant's birthdate was December 29, 1956, which was Nancy's birthdate. It also had an attachment of a Bio-Data purporting to be complainant's. Since the subject property was previously mortgaged to a certain Evangeline C. Pangilinan, Nancy, representing herself as complainant, signed and executed a Promissory Note 3 and Real Estate Mortgage Contract, 4 which were subsequently notarized by respondent. Respondent relied upon the Community Tax Certificate submitted by Nancy as competent evidence of identity. 5 Photographs were taken during the signing and notarization of the Promissory Note and Real Estate Mortgage Contract and during the release of the loan proceeds on February 13, 2007. Complainant later identified Nancy as the person in the pictures who was signing the contract and promissory note and who received the proceeds of the loan. 6
The subject property was subsequently foreclosed and sold to MCC. 7 Hence, the title of complainant to the subject property was cancelled and a new title was issued under the name of MCC. CAIHTE
On December 21, 2015, complainant, through her attorney-in-fact, filed an administrative complaint against respondent for notarizing the Promissory Note and Real Estate Mortgage Contract without obtaining any competent evidence of identity, in violation of the Rules. Complainant averred that she could not have signed and executed the loan documents in question since she was abroad during its execution and notarization and that she only returned to the Philippines when she was ordered by the Commission on Bar Discipline (Commission) of the Integrated Bar of the Philippines (IBP) to appear in person during the clarificatory hearing scheduled on May 2, 2017. She also contended that respondent had a conflict of interest in notarizing the documents since he was the Assistant Vice President for the Legal Department of MCC. 8
In his Comment with Manifestation and Motion, 9 respondent averred that he complied with the Rules. He contended that he notarized the Promissory Note and Real Estate Mortgage in the presence of complainant, and even required the latter to affix her thumbmark and signature on the documents. Respondent asserted that he relied upon, as evidence of the affiant's identity, the Community Tax Certificate under the name of complainant. He also submitted in evidence the loan documents allegedly signed by complainant and Lease Agreements, Financial Statements, and Annual Income Tax Return covering the subject property. Respondent admitted that he is the Assistant Vice President for the Legal Department of MCC.
On August 1, 2016, the Court referred the case to the IBP for investigation, report, and recommendation. 10
Report and Recommendation
In the June 29, 2017 Report and Recommendation, the Commission recommended the imposition upon respondent of the penalty of reprimand; the revocation of his notarial commission, if still existing; disqualification for reappointment as Notary Public for a period of one (1) year; and a warning that a repetition of similar acts in the future shall be dealt with more severely.
The Commission found that respondent was negligent in ascertaining the identity of the affiant who signed the loan documents by merely requiring the presentation of a Community Tax Certificate. It also held that respondent's reliance upon documents such as Lease Agreements, Financial Statements, and the Annual Income Tax Return as competent evidence of complainant's identity had no legal basis under the Rules. It also found overwhelming evidence that the person appearing on the pictures taken during the execution and notarization of the loan documents was Nancy and not complainant. It noted that complainant was born on November 11, 1938 as evidenced by her government-issued identification cards, contrary to the statement in the loan application purportedly executed by complainant that she was born on December 29, 1956. It also noted the official records from the Bureau of Immigration submitted by complainant that she left for the United States of America on January 29, 2006 and stayed abroad until she was called to appear in the clarificatory hearing before the Commission. The Commission, however, recommended that the penalty be mitigated in view of respondent's admission of guilt and repentance during the clarificatory hearing.
The IBP Board of Governors (Board), in its May 19, 2018 Resolution, 11 adopted the findings and recommendation of the Commission.
Discussion:
The Court adopts the findings and recommendation of the Board in its May 19, 2018 Resolution except as to the penalty.
Section 2 (b), Rule IV of the Rules requires the affiant's personal appearance before the notary public and the submission of competent evidence of identity of the affiant, if the latter is not personally known to the notary public. Under Section 12, Rule II of the same, competent evidence of identity refers to the identification of an individual based on: DETACa
(a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual; or
(b) the oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification.
As a notary public, respondent failed to comply with the Rules when he notarized the Promissory Note and Real Estate Mortgage Contract without requiring an identification document bearing the photograph and signature of Nancy. There was also no credible witness who was personally known to respondent and complainant who could, under oath or affirmation, identify the affiant or signatory of the documents in order for respondent to verify the genuineness of the signature of the acknowledging party.
Indeed, it would have been physically impossible for complainant to appear before respondent and execute the Promissory Note and Real Estate Mortgage Contract on February 7, 2007. As shown by the official records of the Bureau of Immigration, complainant was out of the country on said date, and only returned to the Philippines in 2017. Hence, respondent violated his duty, as a notary public, to ensure that the persons who signed the documents are the very same persons who executed the same and who personally appeared before him to attest to the truth of the contents of the documents 12 when he notarized the Promissory Note and Real Estate Mortgage Contract despite the absence of complainant.
Respondent should have exercised utmost diligence in ascertaining the true identity of Nancy who misrepresented herself as complainant, considering the nature of the loan documents which affected complainant's title to the property. His reliance on the Community Tax Certificate cannot be countenanced since such document does not even minutely comply with the requirements of the Rules. As held by this Court in Baylon v. Atty. Almo, 13 a Community Tax Certificate is not included in the list of competent evidence of identity that notaries public should use in ascertaining the identity of persons appearing before them to have documents notarized because of established unreliability and in view of the ease with which it can be obtained. In Iringan v. Atty. Gumangan, 14 this Court ruled that Community Tax Certificates no longer qualify as competent evidence of the parties' identities for purposes of notarization.
Respondent's failure to properly perform his duty as a notary public resulted in damage to complainant. In fact, a new certificate of title was issued in favor of MCC on the basis of the documents notarized by respondent. Such title unduly prejudiced complainant's right over her property. Respondent's negligence degrades the function of notarization and diminishes public confidence on notarial documents. For having violated the Notarial Rules, respondent also failed to adhere to Canon 1 of the Code of Professional Responsibility (CPR), which requires every lawyer to uphold the Constitution, obey the laws of the land, and promote respect for the law and legal processes. He also violated Rule 1.01 of the CPR, which proscribes a lawyer from engaging in any unlawful, dishonest, immoral, and deceitful conduct. 15
The notarization of public documents is vested with substantive public interest. 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. 16 Respondent's failure to strictly comply with the rules on notarial practice seriously undermines the dependability and efficacy of notarized documents.
Proper Penalty
As to the proper penalty, jurisprudence provides that a notary public who fails to discharge his duties as such is meted out the following penalties: (1) revocation of notarial commission; (2) disqualification from being commissioned as notary public; and (3) suspension from the practice of law — the terms of which vary based on the circumstances of each case. 17 aDSIHc
In Gonzales v. Atty. Ramos, 18 this Court, citing similar cases, held that revocation of notarial commission and disqualification from securing reappointment were insufficient to punish an erring notary public. Suspension from the practice of law was also imposed as penalty for non-compliance with the notarial rules.
In Balbin v. Atty. Baranda, Jr., 19 the notary public therein, who was the lawyer of the lender corporation, as in the instant case, notarized a Promissory Note and Real Estate Mortgage without the presence of one of the signatories. The Court found the lawyer administratively liable for notarizing the documents despite the absence of one of the signatories. The Court deemed it proper to suspend the lawyer from the practice of law for six (6) months considering his admission that he indeed notarized the documents in the absence of the signatories, his expression of sincere apology for his carelessness, and the fact that he was in the twilight years of his life.
Following jurisprudential precedents and in order to remind notaries public that strict compliance with the Rules is mandated by the nature of notarization since it is imbued with public interest, this Court deems it proper to impose upon respondent the penalty of suspension from the practice of law for six (6) months for his utter disregard of the integrity and dignity owing to the legal profession, taking into account, however, the Board's manifestation that respondent admitted his defiance of the Rules and apologized for his acts.
The Court must reiterate that membership in the legal profession is a privilege that is bestowed upon individuals who are not only learned in law, but also known to possess good moral character. Lawyers should act and comport themselves with honesty and integrity in a manner beyond reproach, in order to promote the public's faith in the legal profession. To declare that lawyers must, at all times, uphold and respect the law is to state the obvious, but such statement can never be over-emphasized. Since of all classes and professions, lawyers are most sacredly bound to uphold the law, it is then imperative that they live by the law. 20
WHEREFORE, respondent Atty. Marlon B. Mercado is GUILTY of violating the 2004 Rules on Notarial Practice and the Code of Professional Responsibility. His notarial commission, if still existing, is hereby REVOKED, and he is hereby DISQUALIFIED from reappointment as Notary Public for a period of one (1) year. He is likewise SUSPENDED from the practice of law for six (6) months effective immediately. Further, he is WARNED that a repetition of the same or similar acts in the future shall be dealt with more severely. He is DIRECTED to report the date of his receipt of this Resolution to enable this Court to determine when his suspension shall take effect.
Let a copy of this Resolution be attached to the personal records of Atty. Marlon B. Mercado in the Office of the Bar Confidant and copies thereof be furnished the courts and the Integrated Bar of the Philippines.
SO ORDERED."
Very truly yours,
(SGD.) LIBRADA C. BUENADivision Clerk of Court
Footnotes
1.Rollo, Vol. I, pp. 3-6.
2.Id. at 3.
3.Id. at 14.
4.Id. at 15.
5.Id. at 4.
6. CIBD Report and Recommendation, p. 9, rollo, Vol. IV, p. 27.
7.Rollo, Vol. I, p. 13.
8.Id. at 4; Complainant's Position Paper, p. 7, rollo, Vol. II, p. 26.
9.Id. at 26-43.
10.Id. at 117.
11.Rollo, Vol. IV, pp. 17-18.
12. See Almario v. Atty. Llera-Agno, A.C. No. 10689, January 8, 2018, 850 SCRA 1, 10-11.
13. 578 Phil. 238 (2008).
14. A.C. No. 8574, August 16, 2017, 837 SCRA 198.
15. See Ko v. Atty. Uy-Lampasa, A.C. No. 11584, March 6, 2019.
16.Uy v. Atty. Apuhin, A.C. No. 11826, September 5, 2018.
17.Sappayani v. Atty. Gasmen, 768 Phil. 1, 9 (2015).
18. 499 Phil. 345 (2005).
19. A.C. No. 12041, November 5, 2018.
20.Gonzales v. Atty. Bañares, A.C. No. 11396, June 20, 2018.