SECOND DIVISION
[G.R. No. 203871. January 15, 2014.]
HOLCIM PHILIPPINES, INC., petitioner, vs. JOSEPH F. LOSLOSO AND ELIZABETH F. LOSLOSO, respondent.
NOTICE
Sirs/Mesdames:
Please take notice that the Court, Second Division, issued a Resolution dated15 January 2014 which reads as follows:
G.R. No. 203871 (Holcim Philippines, Inc. v. Joseph F. Losloso and Elizabeth F. Losloso)
This resolves the petition for review 1 of the Decision 2 of the Court of Appeals (CA) dismissing a suit for rescission for failure to state a cause of action.
Petitioner Holcim Philippines, Inc. (Holcim) sued respondents Joseph F. Losloso and Elizabeth F. Losloso (Losloso spouses), Herminigildo Dela Cruz and Norma Caringal-Dela Cruz (Dela Cruz spouses), Johnny M. Sevillana and Gracia M. Caringal-Sevillana (Sevillana spouses) and two other individuals 3 in the Regional Trial Court of Bayombong, Nueva Vizcaya (trial court) for collection of money and rescission of contracts (Civil Case No. 6937). Holcim, which is engaged in the business of cement manufacturing and distribution, sought payment from the Dela Cruz spouses of P13,178,725 constituting unpaid purchases of cement. In addition, Holcim prayed for the rescission of contracts executed by the Dela Cruz and Sevillana spouses in favor of their co-respondents, relatives of the former, conveying parcels of land to the vendees. 4 Holcim theorized that these contracts were executed to deplete the assets of the Dela Cruz spouses, obviating eventual satisfaction of its credit.
The defendants (save for the Dela Cruz spouses) sought the dismissal of the complaint for failure to state a cause of action. The movants called attention to the absence of any allegation in Holcim's complaint that it had exhausted principal remedies against the Dela Cruz spouses before resorting to the subsidiary remedy of rescission.
In its Order dated 23 March 2010, the trial court refused dismissal, holding that "there is need to thresh out factual issues, one of which is whether . . . the [Dela Cruz spouses] have properties to answer for their indebtedness . . . ." 5 The movants unsuccessfully sought reconsideration. 6
On appeal by the Losloso spouses, 7 the CA set aside the trial court's ruling and dismissed Holcim's complaint for rescission. 8DAETcC
Hence, this appeal.
We deny the petition for lack of reversible error in the judgment of the CA.
First. The cause of action for rescission under Article 1381(3) of the Civil Code (accion pauliana) arises when "creditors cannot in any manner collect the claims due them." This means that for a contract executed by a debtor with a third party to be rescinded, the creditor must allege and prove that it has exhausted all the remedies against the debtor and that its efforts proved unavailing. 9 Successively, these remedies are (1) execution of a judgment credit against the properties of the debtor, and (2) initiation of actions in subrogation of the debtor (accion subrogatoria). 10 If these remedies subsist, accion pauliana will not lie.
Such situation obtains here. Holcim, the creditor of the Dela Cruz spouses, has yet to obtain a judgment against the latter to collect on its credit. Indeed, its collection suit in Civil Case No. 6937 was still pending below when this appeal was filed. For Holcim to include in such suit the cause of action for rescission of the contracts entered into by the Dela Cruz and Sevillana spouses with their co-respondents is to bypass the successive remedies antecedent to an accion pauliana, namely, execution of judgment credit and accion subrogatoria. Being successive remedies, these can only be availed of one at a time.
Second. Contrary to Holcim's contention, failure to state a cause of action is the ground to dismiss a prematurely filed action for rescission. It is settled that for accion pauliana to lie, the following must be alleged in the complaint: 1) the plaintiff asking for rescission has credit prior to the alienation, although demandable later; 2) the debtor has made a subsequent contract conveying a patrimonial benefit to a third person; 3) the creditor has no other legal remedy to satisfy its claim, but would benefit by rescission of the conveyance to the third person; 4) the act being impugned is fraudulent; and 5) the third person who received the property conveyed, if by onerous title, has been an accomplice in the fraud. 11 Holcim's complaint for rescission is fatally defective for lack of the third allegation.
Third. The CA committed no error in limiting its order of dismissal to the improvidently filed cause of action for rescission in Civil Case No. 6937. The suit to collect payment in that case against the Dela Cruz spouses, the first remedy available to Holcim, stands and should proceed in due course.
WHEREFORE, we RESOLVE to DENY the petition.
Very truly yours,
(SGD.) MA. LOURDES C. PERFECTODivision Clerk of Court
Footnotes
1. Under Rule 45 of the 1997 Rules of Civil Procedure.
2. Dated 15 June 2012 penned by Associate Justice Samuel H. Gaerlan, with Associate Justices Amelita G. Tolentino and Ramon R. Garcia, concurring. Holcim's motion for reconsideration was denied in the Resolution of 17 October 2012.
3. Harold Dela Cruz and Clarissa Dela Cruz.
4. Three parcels of land sold by the Dela Cruz spouses to Harold Dela Cruz and Clarissa Dela Cruz on 31 December 2008 and 9 January 2009; two parcels of land sold by the Dela Cruz spouses to the Losloso spouses on 9 January 2009; and one parcel of land sold by the Sevillana spouses to the Losloso spouses on 9 January 2009.
5. Rollo, p. 84.
6. Their motion was denied in the Joint Order dated 6 October 2010.
7. Via a petition for certiorari.
8. The dispositive portion of the CA's ruling provides:
WHEREFORE, premises considered, the instant petition is GRANTED. The assailed Order, dated 23 March 2010, as well as the Joint Order, dated 6 October 2010, issued by public respondent in Civil Case No. 6937 are hereby ANNULLED and SET ASIDE. The accion pauliana against petitioners is hereby DISMISSED. (Rollo, pp. 39-40)
9. Khe Hong Cheng v. Court of Appeals, 407 Phil. 1058 (2001).
10. Adorable v. Court of Appeals, 377 Phil. 210 (1999).
11. Anchor Savings Bank (Formerly Anchor Finance and Investment Corporation) v. Furigay, G.R. No. 191178, 13 March 2013, 693 SCRA 384, citing Adorable v. Court of Appeals, supra note 10.