Case-DIGEST Rule 58 Case 7 Borlongan Vs Banco de Oro

G.R. No.
217617
CARMELITA T. BORLONGAN, Petitioner, vs.
BANCO DE ORO (formerly EQUITABLE PCI BANK), Respondent.
FACTS
Elisio Borlongan, Jr (Elisio) and his wife Carmelita own a property located at Pasig City (subject
property). While processing the papers for the prospective sale of the property, they discovered
that the same has become the subject of an execution sale in a civil case. The civil case was
initiated by BDO for a sum of money against Tancho Corporation, the principal debtor wherein
Carmelita was also impleaded being a board of director of the corporation and who supposedly
signed security agreements to guarantee the obligations of the corporation.
The summons of all defendants was addressed to Tancho Corporation located at Fumakilla
Compound. The records of the case showed that BDO already foreclosed Fumakilla Compound
as early as August 21, 2000, following Tancho’s failure to pay its obligation. Understandably, the
summons remained UNSERVED as “the defendants are no longer holding office at the
compound” after a SINGLE ATTEMPT at PERSONAL SERVICE. The court then approved the
motion by BDO to serve summons by PUBLICATION. The next year, BDO filed an ex-parte
Motion for the attachment against the defendants including Carmelita which was granted by the
court. The service of summons against the subject property was unserved and so BDO caused
the publication of the alias summons. And so the case proceeded without the participation of
Carmelita. When the property was subject to an auction, the property was sold to BDO, who
was the highest bidder.
Upon discovery of the sale of the property, Eliseo executed an affidavit of adverse claim and
filed a complaint for Annulment of Surety Agreements, Notice of Levy on Attachment, Auction
Sale and Other Documents. He alleged in his Complaint that the subject property is a family
home that belongs to the conjugal partnership of gains he established with his wife. He further
averred that the alleged surety agreements upon which the attachment of the property was
anchored were signed by his wife without his consent and did not redound to benefit their family.
Thus, he prayed that the surety agreements and all other documents and processes, including
the ensuing attachment, levy and execution sale, based thereon be nullified. Carmelita also
prayed for a TRO and/or Writ of Preliminary Injunction.
ISSUES:
(1) Is the issuance of a TRO/WPI proper in the instant case?
(2) Was the service of summons proper?
RULING
(1) Yes. Without a TRO and/or WPI enjoining the respondent bank from continuing in the
possession and consolidating the ownership of the subject property, petitioner's right to
be afforded due process will unceasingly be violated.
A writ of preliminary injunction is warranted where there is a showing that there exists a
right to be protected and that the acts against which the writ is to be directed violate an
established right. Section 3, Rule 58 of the Rules of Court provides the grounds for the
issuance of a preliminary injunction, viz:
Section 3. Grounds for issuance of preliminary injunction. - A preliminary

injunction may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and the whole or
part of such relief consists in restraining the commission or continuance
of the act or acts complained of, or in requiring the performance of an act
or acts either for a limited period or perpetually;
(b) That the commission, continuance or non-performance of the act or

acts complained of during the litigation would probably work injustice to
the applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is

attempting to do, or is procuring or suffering to be done some act or acts
probably in violation of the rights of the applicant respecting the subject of
the action or proceeding, and tending to render the judgment ineffectual.
Otherwise stated, for a court to decide on the propriety of issuing a TRO

and/or a WPI, it must only inquire into the existence of two things: (1) a
clear and unmistakable right that must be protected; and (2) an urgent
and paramount necessity for the writ to prevent serious damage.
The issuance of a TRO/WPI is not a prejudgment of the main case. Petitioner has a
clear and unmistakable right that must be protected. This right is not just her proprietary
rights over the subject property but her constitutionally protected right to due
process before she can be deprived of her property.
(2) No. The performance of official duty was not regular. The essence of due process lies in
the reasonable opportunity to be heard and to submit any evidence the defendant may
have in support of her defense; she must be properly served the summons of the
court. In other words, the service of summons is a vital and indispensable ingredient of
due process 9 and compliance with the rules regarding the service of the summons is as
much an issue of due process as it is of jurisdiction. 10
As a rule, summons should be personally served on a defendant. When summons

cannot be served personally within a reasonable period of time, substituted service may
be resorted to. Service of summons by publication can be resorted to only if the
defendant's "whereabouts are unknown and cannot be ascertained by diligent inquiry."
It is, therefore, proper to state pursuant to the relevant sections of Rule 14

of the Rules of Court provide that the hierarchy and rules in the service of
summons are as follows:
(1) Personal service; (Sec 6)
(2) Substituted service, if for justifiable causes the defendant cannot be
served within a reasonable time; and (sec. 7)
(3) Service by publication, whenever the defendant's whereabouts are
unknown and cannot be ascertained by diligent inquiry. ( sec14)
Simply put, personal service of summons is the preferred mode. And, the
rules on the service of summons other than by personal service may be
used only as prescribed and only in the circumstances authorized
by statute. Thus, the impossibility of prompt personal service must
be shown by stating that efforts have been made to find the defendant
personally and that such efforts have failed before substituted service
may be availed.
For substituted service of summons to be available, there must be several

attempts by the sheriff to personally serve the summons within a reasonable
period [of one month) which eventually resulted in failure to prove impossibility of
prompt service. "Several attempts" means at least three (3) tries, preferably on at
least two different dates.
The summons was served on the petitioner by publication. Yet, the circumstances surrounding
the case do not justify the resort. Clearly, there was no diligent effort made to find the
petitioner and properly serve her the summons before the service by publication was allowed.
Neither was it impossible to locate the residence of petitioner and her whereabouts.

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G.R. No.

Section 3. Grounds for issuance of preliminary injunction. - A preliminary

(b) That the commission, continuance or non-performance of the act or

(c) That a party, court, agency or a person is doing, threatening, or is

Otherwise stated, for a court to decide on the propriety of issuing a TRO

As a rule, summons should be personally served on a defendant. When summons

It is, therefore, proper to state pursuant to the relevant sections of Rule 14

For substituted service of summons to be available, there must be several

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