Republic of the Philippines
National Capital Judicial Region
METROPOLITAN TRIAL COURT
Branch 4
City of Manila
PEOPLE OF THE PHILIPPINES,
Complainant/Appellee,
versus CRIM. CASE NO. 16-06220-25-CR
FOR : VIOLATION OF BATAS
PAMBANSA BILANG 22 (6
counts)
ATTY ALFEO D. VIVAS,
Accused/Appellant,
X-------------------------------------X
MEMORANDUM OF APPEAL
Accused ATTY. ALFEO D. VIVAS, by himself, respectfully
states:
I.
Nature of the Appeal
1. This is an appeal pursuant to Sections 21 of the Revised
Rules of Summary Procedure in relation to Section 22 of Batas
Pambansa Blg. 129 from the 14 March 2019 decision of the
Metropolitan Trial Court Branch 4 through the Honorable Judge
ERIZA P. PAGALING- ZAPANTA in Criminal Case No. CRIM. CASE
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NO. 16-06220-25-CR entitled “ People of the Philippines vs. Attys.
Alfeo D. Vivas and Margarito C. Villardo”.
2. The Honorable Judge Zapanta found Atty. Vivas guilty of
the charge involving six (6) counts of violation of Batas Pambansa
Blg. 22 and sentenced him to pay fines with corresponding civil
liability.
3. The particulars of the judgment against Atty. Vivas
subject of this appeal are the following:
# Criminal Case Amount of Subsidiary Amount of
Number fine in imprisonment civil liability
Pesos in case of in Pesos
insolvency
1 M-QZN-606220 200,000 Yes 1,018,000
2 M-QZN-606221 200,000 Yes 950,000
3 M-QZN-606222 200,000 Yes 500,300
4 M-QZN-606223 200,000 Yes 143,200
5 M-QZN-606224 200,000 Yes 35,600
6 M-QZN-606225 200,000 Yes 1.000,000
Total 1,200,000 3,647,100
4. A certified true copy of Judge Zapanta’s 14 March 2019
Decision is attached to this Memorandum of Appeal as Annex “1”
and made an integral part hereof.
II.
Timeliness of the Appeal
5. On 15 March 2019 Zapanta during promulgation,
Accused Vivas received his copy of the 14 March 2019 decision of
MTC Branch 4 Judge Pagaling-Zapanta. He has 15 days therefrom,
or until 1 April 2019, to file and perfect an appeal. This appeal is
thus timely filed.
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III.
Parties
6. Accused/Appellee may be served with summons and
other court processes in the address indicated below and through
his counsel of record Atty. Marvin J. Urmenita at Urmenita &
Urmenita Law Offices, 5th Floor Mezzanine, Victoria Station Tower I
Condominium, EDSA, GMA Kamuning, Quezon City.
7. Complainant/Appellee may be served with summons and
other processes through the Honorable Judge Eriza P. Pagaling-
Zapanta, at the Metropolitan Trial Court, Branch 4, 2nd Floor,
Masagana Telamart, Taft Avenue, Manila.
8. Atty. Gilbert Coronel, counsel for private complainants,
may be served with summons and other court processes in 270
Malingap Street, Teachers Village, 1101 Diliman, Quezon City.
IV.
Key Facts of the Case
9. Accused Vivas was the one of the principal signatories of
the EuroCredit Cooperative, since its organization in September
1999 and until May or June 2009, during which period it showed
an impeccable record of repayment on its financial obligations.
10. The Cooperative received a number of awards from its
counterparties and institutional lenders as a responsible member of
the cooperative community. The Cooperative was organized mainly
by Central Bankers, either retired or then still officers of that
institution.
11. Complainant Eduardo Lim, being the sister of Maritess
Lim Chua, a founding member, joined the Cooperative in 2001-
2002 having invested in equity or share capital of EuroCredit and
later in the forms deposits. He later on withdrew all his equity and
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deposits but came back as a member in 2007 depositing some Php
6 million in EuroCredit deposits. The relationship with Private
complainant floundered sometime in 2009 when the coop faced
financial difficulties and plunged into illiquidity.
12. The Cooperative experienced financial difficulties because
it had significant investments in the form of equity and advances to
a rural bank it owned, the EuroCredit Community Bank, Inc.
(ECBI), in Cagayan Province. EuroCredit acquired majority control
of the bank in 2006.
13. The ECBI faced regulatory problems, certainly not fraud,
with the Bangko Sentral ng Pilipinas and eventually was placed on
receivership. In the main, funding extended to the closed rural bank
severely affected the cooperative’s liquidity and its reputation as a
going concern.
14. The Cooperative’s liquidity started to dry up in early 2009
and the Management of the Cooperative immediately advised its
institutional lenders particularly Land Bank of the Philippines and
Small Business Corporation and key Coop members and directors
of the forthcoming financial debacle with a request for more time to
sort things out. Unfortunately, reputational concerns growing out of
the dispute with the Bangko Sentral ng Pilipinas effectively scuttled
all efforts to rehabilitate ECBI.
15. It was during those times of distress that private
complainant, being aware of the Coop’s illiquidity came to see
Accused Vivas and persistently bothered and pestered the latter to
issue him checks for his investments with the Coop. He was advised
that the checks could not be issued since there was no liquidity to
fund such checks. Still Eduardo Lim persisted. Relationship
considerations coupled with an expectation that EuroCredit could
still be rehabilitated, some 12 or 13 checks were delivered to him
sometime in October 2009 as a sign of good faith to accommodate
Ed Lim’s demand and still believing that a rehabilitation of
EuroCredit could ensue, Accused convinced Co-Accused Villardo to
sign on Allied Bank checks for the same reasons and on the basis of
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specific instructions that the checks were not funded and should
never be deposited until further advice on funds availability. The
checks were eventually and physically issued and delivered not in
the EuroCredit office but in a memorial chapel in Quezon City
during the wake of Accused Villardo’s daughter.
16. Eduardo Lim was only the third member of EuroCredit,
(after Grace Aizawa and Jomars Al Cruz) who sought for the
issuance of checks during EuroCredit’s distress and illiquidity. The
reason is it was never the policy and practice of EuroCredit to issue
checks, postdated or otherwise, to members. Checks were issued
only when a specific obligation or liability or arises, as in cases a
deposit matures or withdrawn or when the dividends are declared
payable. Both accused were acquitted in the Aizawa and Al Cruz
cases.
17. Right after receiving the checks sometime in October
2009, Eduardo Igno Lim reneged on his agreement with the accused
deposited them. Allied Bank returned the checks with the notation
“Account Closed”.
18. During a meeting of members of EuroCredit held at the
Executive Lounge of the BSP’s Multi-Storey Building, Paolo
Barrameda asked Accused Vivas to affix his signature on a
document the contents of which were hidden from him. During a
lull in the meeting, Paolo Barrameda, Eduardo Lim’s confidant,
holding the document paper approached him from the left side of
the rectangular table and asked him to sign while he covered its
contents by pulling the paper down triangularly while leaving a
blank space on the left side of the document. Accused Vivas affixed
his signature on the left side of the document without seeing the
contents of the letter which he presumes to be the demand letter or
notice of dishonor.
19. After getting a favorable endorsement of his complaint
from the National Bureau of Investigation, Eduardo Lim and his
sister Maritess Chua, a founding member of EuroCredit, filed two
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criminal complaints for syndicated estafa and a separate case for
violations of BP 22 in 2014.
20. Then ACP Ronald Q. Torrijos found probable cause to
charge Accused for syndicated estafa and BP 22 violations in
February 5, 2015. The resolution was released in December 21,
2015 almost a year after the date of the fiscal’s resolution. Case was
raffled in RTC 217 and the arrest warrants were issued December
26, 2015 with no bail recommended.
21. Accused Vivas and Villardo were arrested in January
2016. Villardo immediately filed a bail petition for his provisional
liberty while Vivas filed an Omnibus Motion to Reinvestigate and
Quash the Arrest Warrant. The RTC granted Villardo’s bail petition
in May 2017 and freed him weeks after.
22. Vivas filed his bail petition June 2017 which was likewise
granted. Vivas was freed January 2019 after his arraignment in
December 2019.
23. On February 4, 2019. Accused Vivas filed a disbarment
case against then ACP Torrijos, now RTC Judge of Branch 288 of
Navotas City for violating the Lawyer’s Oath and the Code of
Professional Responsibility.
24. Meanwhile, a full-blown trial ensued on the BP 22
violations before this sala which culminated in the rendition of the
14 March 2019, the subject of this appeal.
V.
Ground for Appeal/Assignments of Errors
25. Appellant respectfully submits that the Honorable Judge
Pagaling-Zapanta committed serious errors in her findings of fact
and conclusions of law, which, if not corrected, would cause grave
and irreparable damage or injury to Appellant.
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26. Appellant thus seeks the reversal of the Hon. Judge
Zapanta’s Decision of 14 March 2019 Decision in finding Accused
Vivas guilty of 6 counts of violation of BP 22 and in making him
civilly liable for the amounts indicated in the 6 checks issued.
27. Appellant avers that the assailed decision, both in its
criminal and civil aspects, is contrary to law, jurisprudence and the
evidence. Moreover, its finding of guilt beyond reasonable doubt on
the part of the Accused/Appellant is not supported by the facts and
evidence.
28. Appellant thus makes four (4) assignments of error
committed by Respondent/Appellee with respect to the assailed
judgment, to wit:
A. That the MTC gravely erred in concluding that
the checks were issued for value or for consideration.
B. That the MTC gravely erred in finding that that
there was a notice of dishonour.
C. That the MTC gravely erred in convicting a check
co-signatory while rendering a judgment of acquittal of
a co-signatory to the check.
D. That the MTC gravely erred in making
Accused/Appellant solely and civilly liable for
corporate or cooperative obligations.
VI.
Arguments/Discussions
That the MTC gravely erred in concluding that the checks were
issued for value or for consideration.
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29. Section 3 of the BP 22 is not disputed. What is being
disputed is that the concept of prima facie evidence is neither
immutable nor absolute. That is why it ti is called prima facie,
meaning at first sight, or on the face of it1. Countervailing evidence
can be introduced to rebut prima facie evidence.
30. In the same vein, reliance on Section 24 of the Negotiable
Instruments law is misplaced. Section 24 together with its caption
speaks of presumption of consideration. Presumption is disputable.
Presumption of consideration stands only if not rebutted by
evidence.2
Young vs. CA supports
Accused/Appellant’s cause.
31. Contrary to the conclusion reached by the MTC, the
Young case actually applies to Accused/Appellant for the reason
that “… the checks were drawn and issued in good faith and
without intention on the part of respective drawers to apply
said checks for value…”.
32. The facts and the evidence clearly establish that the
checks were never issued in payment of private complainant’s
deposits with EuroCredit. The very fact that EuroCredit was a
distressed institution at the time the checks were issued, confirmed
and admitted during trial, can only be consistent with the
notification made to the private complainant that the checks were
not funded and should not be deposited. Jumping to a conclusion
that the checks were issued for value and in bad faith militates
against the facts surrounding the issuance of the checks as well as
against the repeated statements of both accused to the court and
even during the preliminary investigation that the checks were
unfunded and should not be deposited. It is a matter of record that
Accused/Appellant had vehemently denied issuing them for value
or consideration. The premise of the issuance all along was that
private complainant, as a major member depositor he could play an
1
So vs. Tiu, 13 Phil 143.
2
Bahi vs. Litonjua, 30 Phil 627.
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important role in the rehabilitation of EuroCredit as a distressed
institution.
No money or funds was
received at the moment of
issuance of the checks.
33. The six (6) information involving BP 22 violations filed
with the court state the checks were issued “… sometime in August
2009…”3. This phrase in the information date was negated during
the cross examination of private complainant and the direct
testimony of Villardo when the checks were delivered to private
complaint during the wake of Atty. Villardo’s daughter. The date
was sometime in October 2009.
34. The facts and the evidence show that no funds, actual or
constructive, flowed to EuroCredit or to Accused/Appellant at the
point in time that the checks were issued. The TSN, during the
cross of Ed Lim, the private complainant, further showed that no
prior demand was ever made by him on EuroCredit or
Accused/Appellant for payment of his deposit certificates.
35. Moreover, said certificates upon which the checks were
based had all matured4 when the checks were issued, whether
August 2009 or October 2009. This means that the EuroCredit
obligations which were the subject of the checks issued were
incurred at least a year from the maturity date appearing in the
instrument.5
36. Since there were no funds or money or whatever received
by EuroCredit at the time the checks were issued, then such checks
could not have been issued for value or consideration.
3
Pages 2 and 3 of MTC Decision.
4
Page 5, Ibid.
5
Minimum maturity of deposit instruments of EuroCredit was one year.
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MTC disregarded the lack of
correlation between the
EuroCredit obligations being
paid and the checks issued
purportedly to pay such
obligations.
37. Correlation between a check and the obligation it is
supposed to pay is a basic tenet in not only in banking but in
contracts and obligations. principle and fundamental in banking
and deposit or financial instruments. This means that if a check is
issued to fully settle an obligation, the date of the check and the
amount in the face of the check must correspond with the maturity
date of the obligation and the face amount of the deposit certificate
plus interest respectively.
38. The following table shows quite clearly that there was
lack of match or correlation between the Allied Bank checks issued
and and the EuroCredit obligations they checks were supposed to
pay.
39.
40. obligations Th
MTC failed
41. with acpond mustIt is anchoredednot rocket since but
financial supposThis is a fundamental Comparing the certificates
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of deposits6 issued by EuroCredit signed by Accused/Appellant and
Atty. Villardo with the EuroCredit checks purportedly issued to
settle the obligations do not show any correlation or match. There is
lack of correlation with respect to the dates when the EuroCredit
obligation should have been Although the principal amounts agree,
there should be additional payments for interest since the deposits
matured on dates much earlier than the issue date/s of the checks.
42. The follockes were made way value dates This further
proves trher Further proving that the checks could not have been
pay them ertificates7 purportedly the subject of the check payments
do not show any correlation or matchsettlement of supposedly
amounts of If the checks were indeed issued in payment of said
obligations, their maturity dates should coincide with the date
speaks o
Prima facie evidence and
presumption of consideration
are disputable presumptions
43. Appelllant or at record
44. It is of record that the instruments claimed to any of the
otherwise actual , of. The simple fact is that the subject checks
were issued sometime in plain facts of the In relative length, the
MTC relied on Respondent/Appellee Appellee Xxxxxx
45. xxx
a.
Respectfully submitted.
Quezon City, 26 March 2019.
6
Page 5, Ibid.
7
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ALFEO D. VIVAS
Roll of Attorneys No. 47155
IBP Lifetime Member 012152
PTR No. MLA - 8233591
Dated 2/29/2019
` MCLE VI-0018023 2/11/2019
Valid until April 2022
The Garden Heights
E. Rodrigues Avenue
Quezon City
Copy furnished
Eduardo Lim
Unit P No. 18
Scout Bayoran
Barangay South Triangle
Quezon City
Atty. Gilbert Coronel
Private Prosecutor
27-C Malingap Street
Teachers Village
1101 Diliman, Quezon City
x------------------------------------------------------------------------x
Explanation
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Copies of the foregoing Memorandum of Appeal were served by
registered mail, instead of the preferred mode of personal service,
because of distance constraints and a temporary lack of available
messengers at the office of the undersigned.
ADRIAN N. VIVAS
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