THIRD DIVISION
[A.C. No. 9643. April 4, 2018.]
LOURDES LAWANGEN INSO, complainant,vs. ATTY. MARY INGLAY CAPUYAN-FOKNO, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedApril 4, 2018, which reads as follows:
"A.C. No. 9643 (Lourdes Lawangen Inso v. Atty. Mary Inglay Capuyan-Fokno) — In her Affidavit-Complaint 1 dated August 25, 2011, filed before the Court, Lourdes Lawangen Inso (complainant) charged Atty. Mary Inglay Capuyan-Fokno (respondent) of violating the notarial law, the Lawyer's Oath and Section 20 and 27, Rule 138 of the Rules of Court.
On March 7, 2000, Maria Duyot Lawangen and Jose Lawangen, complainant's parents, entered into a loan contract, where they borrowed the amount of P368,000.00 from Marciana Talakan (Talakan) evidenced by a Promissory Note. 2 To secure the loan, the parties also executed a Deed of Real Estate Mortgage 3 covering a parcel of land under TCT No. T-22100, with an area of 204 square meters, registered under the name of complainant's parents.
When the loan matured on March 5, 2001, complainant's parents did not pay their obligation. Respondent, the lawyer of Talakan, sent several demand letters 4 to them but these were unheeded. Thus, on October 3, 2008, Talakan filed a Petition for Extrajudicial Foreclosure of the Mortgage 5 with the Clerk of Court of the Regional Trial Court of Benguet. The said petition was notarized by respondent with Talakan presenting Community Tax Certificate (CTC) No. 05295297, properly issued under her name.
After due publication and posting, the subject land was foreclosed at a public auction on November 11, 2008, with Talakan as the highest bidder. Accordingly, a Sheriff Certificate of Sale 6 was issued and it was registered on April 8, 2009 at the Register of Deeds of Benguet. On November 2, 2010, after the lapse of one (1) year and the subject property was not redeemed, a Final Sheriff Certificate of Sale 7 and a Certificate of Non-Redemption 8 were issued.
Consequently, Talakan executed an Affidavit of Consolidation 9 dated December 27, 2010. It was notarized by respondent and it stated that Talakan presented CTC No. 17037944 as her proof of identity.
On September 14, 2012, as pointed out earlier, complainant filed this instant complaint for disbarment alleging that respondent violated the notarial law, the Lawyer's Oath and Section 20 and 27, Rule 138 of the Rules of Court because she notarized the affidavit of consolidation even though Talakan presented a false CTC. She averred that CTC No. 17037944 was actually issued under the name of a certain Mercedita Puiz Tango, and not to Talakan. Complainant claimed that respondent knew of the false CTC of Talakan but she still notarized the said affidavit of consolidation. She also added that she filed a criminal complaint for falsification against respondent before the Office of the Prosecutor of La Trinidad, Benguet (Prosecutor).
Complainant also alleged that respondent committed another falsification because the deed of real estate mortgage stated that her parents' loan was only P200,000.00 but respondent insisted that the consideration was P368,000.00.
In her answer, respondent denied all the allegations against her. She states that the Prosecutor had dismissed the criminal complaint for falsification against her in a Resolution 10 dated October 6, 2011 for lack of merit; that she committed an honest error in indicating the wrong CTC of Talakan in the affidavit of consolidation; that Talakan may still validly transfer the ownership of the property even though there was an error in the CTC; and that the deed of real estate mortgage and promissory note clearly state that the loan obligation is P368,000.00.
Report and Recommendation
In its Report and Recommendation 11 dated February 29, 2016, the IBP Commission on Integrity and Bar Discipline (Commission) recommended the dismissal of the complaint for insufficiency of evidence. It gave due credence to the resolution of the prosecutor that the wrong CTC indicated in the affidavit of consolidation was a mere clerical error. The Commission observed that respondent also notarized the petition for extrajudicial foreclosure of the mortgage and it indicated the proper identification of Talakan, which is CTC No. 05295297. It also observed that respondent correctly stated that the loan obligation is P368,000.00 based on the deed of real estate mortgage and promissory note.
In its Resolution No. XXII-2017-766 12 dated January 27, 2017, the IBP Board of Governors (Board) adopted the findings of the Commission dismissing the complaint.
The Court's Ruling
The Court accepts and adopts the findings of fact and recommendation of the Commission, and the IBP Board.
It is a well-established rule that for a charge to warrant a disciplinary action against a lawyer, the complainant must present convincing proof to substantiate the charge. Otherwise, the presumption that the lawyer is innocent of the charge prevails. 13
In this case, aside from the bare allegations of complainant, she did not present any convincing proof that respondent maliciously falsified the CTC of Talakan in her affidavit of consolidation. As properly held by the Commission and the prosecutor, it is clear that the mistake in the CTC of Talakan was merely clerical. Besides, respondent clearly did not have any intent to notarize an affidavit containing a false CTC because when she notarized the petition for extrajudicial foreclosure of the mortgage, it indicated the proper identification of Talakan, which is CTC No. 05295297. Moreover, complainant never questioned the identity of Talakan as the creditor of her parents and the one who foreclosed their property.
Notably, Talakan, through respondent, underwent the proper process of foreclosing the subject property by filing a petition for the extrajudicial foreclosure of the mortgage; the notices were properly published; a valid auction sale was held and a certificate of sale was issued and registered; after the one (1) year period of redemption lapsed, a final certificate of sale and a certificate of non-redemption were issued and registered; and an affidavit of consolidation was executed by Talakan. Indeed, there was no substantial irregularity in the foreclosure of the subject property by respondent.
Finally, the Court affirms the finding of the Commission that respondent demanded the proper amount from complainant's parents. The said loan obligation is P368,000.00 based on the deed of real estate mortgage and promissory note signed by complainant's parents.
WHEREFORE, the Court ADOPTS and APPROVES the findings of fact, conclusions of law, and recommendations of the Commission on Integrity and Bar Discipline, which the Board of Governors of the Integrated Bar of the Philippines likewise adopted and approved. The complaint against Atty. Mary Inglay Capuyan-Fokno is DISMISSED.
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1.Rollo, pp. 3-6.
2.Id. at 164.
3.Id. at 39.
4.Id. at 242-244.
5.Id. at 246-247.
6.Id. at 263-265.
7.Id. at 266-268.
8.Id. at 269.
9.Id. at 12.
10.Id. at 66-68.
11.Id. at 351-361.
12.Id. at 349-350.
13.Mejares v. Atty. Romana, 469 Phil. 619-628-629 (2004).