REPUBLIC OF THE PHILIPPINES
THIRD JUDICIAL REGION
REGIONAL TRIAL COURT
BRANCH 65
SAN FERNANDO CITY
HERRERA CABRERA
Plaintiff
-versus- CIVIL CASE NO. XXXXXX
For: Specific Performance,
Collection and Damages, With
Petition for Issuance of a Writ of
Preliminary Attachment
JOSE CRUZ et al
Defendants.
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ANSWER
(Re: Complaint dated 28 March 2010)
Defendants, by the undersigned counsel, by way of Answer to
Plaintiff’s Complaint dated 28 March 2010, unto this Honorable Court
most respectfully allege that:
A. ADMISSIONS/DENIALS
1. Defendants Complaint have no knowledge to form a belief
as to the truth of the averment stated in paragraph 1 and 12 13 14.
2. Admits par 2
3. Defendants specifically denies the allegation in paragraph
_ of the complaint the truth being the obligation has been paid.
B. AFFIRMATIVE DEFENSES
By way of special and affirmative defenses, the defendants aver:
The action has prescribed
The defendants replead the foregoing paragraphs by reference.
The grounds to support the instant protest are grossly unsubstantiated
and replete with sweeping generalizations and conclusions.
It is clear as supported by Paragraph 10 of the Complaint itself
specifically states that the Plaintiff only formally demanded payment
to the Defendants on 30 May 2018.
Thus, it is evident that the action has prescribed.
Plaintiff’s action for collection of a sum of money was based on a
written contract and prescribes after ten years from the time its right
of action arose. The prescriptive period is interrupted when there is a
written extrajudicial demand by the creditors.
Personal close relationship is not an excuse to forego the written
demand required by the law.
It is mere speculative.
It must be noted that the alleged loan by the Defendants was
contracted sometime on or about 2004. The action was filed only on 28
March 2019.
Fifteen years had already elapsed when the obligation was allegedly
contracted by the Defendants.
Under Article ___ of the Civil Code of the Philippines,
The prescriptive period is interrupted when there is a written
extrajudicial demand by the creditors.36 The interruption of the
prescriptive period by written extrajudicial demand means that the
said period would commence anew from the receipt of the demand.
In this case the demand was made only in 2018 when the contractual
obligation had already lapsed.
An action upon a written contract must be brought within ten years
from the time the right of action accrues (Art. 1144[1], Civil Code). "The
prescription of actions is interrupted when they are filed before the
court, when there is a written extrajudicial demand by the creditors,
and when there is any written acknowledgment of the debt by the
debtor" (Art. 1155, Ibid, applied in Gonzalo Puyat & Sons, Inc. vs. City
of Manila, 117 Phil. 985, 993; Philippine National Bank vs. Fernandez,
L-20086, July 10, 1967, 20 SCRA 645, 648; Harden vs. Harden, L-22174,
July 21, 1967, 20 SCRA 706, 711).
For the demand to interrupt, it must be in writing and MADE BEFORE
THE EXPIRATION OF THE PERIOD FIXED BY LAW.
Even assuming there is an acknowledgement, as held in PNB v. Osete,
G.R. No. L-24997, July 18, 1968. The acknowledgement if not coupled
with a communication SIGNED by the payor, would not interrupt the
running of the period of prescription.
Further, the acknowledgment must be such as to apply to a particular
and specific debt to interrupt prescription DELEON 782-785
Thus a mere acknowledgement after it has already prescribed is not
sufficient to renew the period of prescription.
Failure to state a cause of action
The attachment should be denied. No cause of action as the claim had
already prescribed. Under Section 3, Rule 57.
There is no affidavit of merit to support the same.
It does not appear that a sufficient cause of action exists or that the case
is one of those mentioned in Section 1 hereof. Furthermore, the
complaint is bereft of proof that there is no other sufficient security for
the claim sought to be enforced by the action and the amount due to
applicant is as much as the sum for which the order is to be granted
above all legal counterclaims. It does not appear that a bond has been
filed.
