The 2009 Philippine Blog Awards

Tuesday, August 10, 2010

JRCLS Philippines Chapter: Making A Difference!!



The Starfish
"An old man was walking along the beach.In the distance he saw someone who seemed to be dancing along the waves. As he got closer, he saw a woman picking up starfish and tossing them back into the ocean. "What are you doing?" The old man asked. "The sun is coming out.If I don't throw them in they will die". "But woman, there are many miles and miles of beach with starfish all along it. You can't possibly make a difference". The woman bent down,picked up a starfish and threw it back past breaking waves". "It made a difference to that one!"


Like the woman in the story, the wonderful members of the J. Reuben Clark Law Society Philippines Chapter (JRCLS) desire to make a difference in the lives of those LDS members who stand injured and unprotected legally.

Since its formation, the members of the Philippines Chapter have extended legal aid services under the society’s legal aid program to a number of qualified recipients. To date, there are 40 individual cases terminated and on-going where the Law Society Members have handled or assisted the clients. Members of the Law Society who render pro-bono legal assistance best epitomize the virtues that the Law Society espouses. In a variety of ways, Law Society members are actively seeking to care for the poor, the needy, and the disadvantaged and have helped the plight of many who, without pro bono assistance, would stand injured and unprotected.

The success of the Legal Aid program is demonstrated in the Philippines Chapter First Case - The Annabel's Case
Handled by: Atty.Rodrigo Reyna, Atty.Robert Cauilan and Atty. Ernesto San Juan

FACTS:

Annabel is a single mother to an 11 year old daughter, an active member of a Ward in Las Pinas Stake. She is an Immigration Facilitator of American Dream Immigration Consultancy Inc. for 4 years.

On March 15, 2008 she was arrested while giving seminar on immigration in an entrapment planned by the Public Employment Service Office of Baler, Aurora and jailed without bail.

She was charged with Illegal Recruitment Large Scale/Syndicated Estafa before the Provincial Prosecutor’s Office.The lawyer engaged by her company did not show up after the lawyer’s first meeting with her.

Her co-accused, the person who asked and arranged for the seminar, is a brother-in-law of the Vice-Governor who is a political enemy of the Governor.
The arrest was aired on local radio and touted a victory against illegal recruiters.
Baler, Aurora is too far, with roads almost not passable to small vehicle.
On 21 May 2008, the law society took her case upon representation by her bishop in her behalf. On July 1, 2008 or about one (1) month from the first visit, Annabel was free on bail. Subsequently, the complaints were dismissed.

CONCLUSION:

Annabel has a good cause and she was faithful despite her sufferings, maintaining gospel standards while availing the pro-bono legal services. The priesthood leaders supported her in many ways. Resources for leg work, transportation, food, lodging, bail and other expenses were made available by kind-hearted members and friends.
Volunteer Lawyers dispense legal services with the “energies of their soul”.
Everyone involved put his trust in the Lord.

OUR PLEA
The Annabel Case tells us that there is no reason pro bono legal services on other worthy case referrals cannot be dispensed with.

The performance of the needed legal services is and must be a shared responsibility of the client and his family or relatives, the priesthood leaders and the handling lawyers.

With this year’s Second Anniversary celebrations slated on August 20-21, 2010, we adopted the theme, “Awake and Arise: Improving Lives Through Legal Aid Service“, with the hope of awakening and arousing every faculties, as described in Alma 32:27 and rolling up our sleeves with a new commitment, putting our trust in the Lord that we can do better than we have ever done before.

Thursday, July 1, 2010

PROPERTY POINT: Boracay Case














This month is the Couchsurfing (CS) Manila Boracay Escapade of which I am invited to attend. It is in celebration of CS Lyn birthday (July 13) and the opening of her new home from July 10-15,2010. I'm sure it will be fun so too bad I can't attend. My sadness,however,could not be compared to the sadness felt by several resort owners way back in October 2008, when the Supreme Court (SC) declared that some 400-hectare of Boracay Island as reserved forestland that cannot be subject to private ownership.

In its October 8,2008 decision, the SC declared that Boracay Island is owned by the state and ruled that private claimants are ineligible to apply for a judicial confirmation of title over their occupied portions in Boracay even with their continued possession and considerable investment in the land.


The SC en banc dismissed the claim of the affected residents, mostly owners of various resorts in the island, that Proclamation 1801 and its implementing circular issued by the late President Ferdinand Marcos did not place Boracay beyond the commerce of man since it was classified as a tourist zone, thus can be a subject of private ownership.


Private claimants, insisted that under Commonwealth Act (CA) 141 or the Public Land Act, they had the right to have the lots registered in their names through judicial confirmation of imperfect titles.However, the SC agreed with the government's position that the reliance of the claimants on Presidential Decree (PD) 1801 was misplaced as their right to judicial confirmation of title was governed by Commonwealth Act 141 and PD 705 issued by Marcos.


Based on CA 141 and PD 705, except lands covered by existing titles, Boracay was an unclassified land of the public domain prior to Proclamation 1064.Such unclassified lands are considered public forest under PD 705.

Tuesday, June 1, 2010

PERSONAL PICK: My Book On Securities Cited By Supreme Court In A 2006 Case


I got a request for legal advice on Facebook from a girl whom I do not know. She said in her email that she found my name through the internet search engine. I find it interesting and I became curious what I would find if I do search for my name. And curiosity killed the cat!

There were 72,200 matches for mary ann l.ojeda in (0.16 seconds). Lotza stuff huh! One thing that I find interesting was the citation by no less than the Supreme Court of my book "Securities and Regulation Code With Annotations" in a case entitled " ABACUS SECURITIES CORPORATION versus RUBEN U. AMPIL docketed as G.R. No. 160016 promulgated last February 27, 2006. The decision was penned by then Chief Justice Artemio V. Panganiban.


The Facts:


Petitioner - Abacus Securities Corporation ("Abacus') is engaged in business as a broker and dealer of securities of listed companies at the Philippine Stock Exchange Center.Sometime in April 1997, Respondent Ruben Ampil (1) opened a cash account with Abacus for his transactions in securities;[10] (2) Ampil’s purchases were consistently unpaid from April 10 to 30, 1997;[11] (3) Ampil failed to pay in full, or even just his deficiency,[12] for the transactions on April 10 and 11, 1997;[13] (4) despite Ampil’s failure to cover his initial deficiency, Abacus subsequently purchased and sold securities for Ampil’s account on April 25 and 29;[14] (5) Abacus did not cancel or liquidate a substantial amount of respondent’s stock transactions until May 6, 1997.[15]


Issues:

1) Whether the pari delicto rule is applicable in the present case, and
2) Whether the trial court had jurisdiction over Abacus alleged violation of the Revised Securities Act.

Ruling: (copied exactly from the decision to show the citations which are highlighted)


The Petition is partly meritorious.


Main Issue:Applicability of the Pari Delicto Principle


The provisions governing the above transactions are Sections 23 and 25 of the RSA[16] and Rule 25-1 of the RSA Rules, which state as follows:


“SEC. 23. Margin Requirements. –

x x x x x x x x x

(b)It shall be unlawful for any member of an exchange or any broker or dealer, directly or indirectly, to extend or maintain credit or arrange for the extension or maintenance of credit to or for any customer –


(1)On any security other than an exempted security, in contravention of the rules and regulations which the Commission shall prescribe under subsection (a) of this Section;

(2)Without collateral or on any collateral other than securities, except (i) to maintain a credit initially extended in conformity with the rules and regulations of the Commission and (ii) in cases where the extension or maintenance of credit is not for the purpose of purchasing or carrying securities or of evading or circumventing the provisions of subparagraph (1) of this subsection.
x x x x x x x x x”

“SEC. 25. Enforcement of margin requirements and restrictions on borrowings. – To prevent indirect violations of the margin requirements under Section 23 hereof, the broker or dealer shall require the customer in non margin transactions to pay the price of the security purchased for his account within such period as the Commission may prescribe, which shall in no case exceed three trading days; otherwise, the broker shall sell the security purchased starting on the next trading day but not beyond ten trading days following the last day for the customer to pay such purchase price, unless such sale cannot be effected within said period for justifiable reasons. The sale shall be without prejudice to the right of the broker or dealer to recover any deficiency from the customer. x x x.”


xxx. The law places the burden of compliance with margin requirements primarily upon the brokers and dealers.[22] Sections 23 and 25 and Rule 25-1, otherwise known as the “mandatory close-out rule,”[23] clearly vest upon petitioner the obligation, not just the right, to cancel or otherwise liquidate a customer’s order, if payment is not received within three days from the date of purchase. The word “shall” as opposed to the word “may,” is imperative and operates to impose a duty, which may be legally enforced. For transactions subsequent to an unpaid order, the broker should require its customer to deposit funds into the account sufficient to cover each purchase transaction prior to its execution. These duties are imposed upon the broker to ensure faithful compliance with the margin requirements of the law, which forbids a broker from extending undue credit to a customer.


“The main purpose is to give a [g]overnment credit agency an effective method of reducing the aggregate amount of the nation’s credit resources which can be directed by speculation into the stock market and out of other more desirable uses of commerce and industry x x x.”[19]


A related purpose of the governmental regulation of margins is the stabilization of the economy.[20] Restrictions on margin percentages are imposed “in order to achieve the objectives of the government with due regard for the promotion of the economy and prevention of the use of excessive credit.”[21]


Otherwise stated, the margin requirements set out in the RSA are primarily intended to achieve a macroeconomic purpose -- the protection of the overall economy from excessive speculation in securities. Their recognized secondary purpose is to protect small investors.


The law places the burden of compliance with margin requirements primarily upon the brokers and dealers.[22] Sections 23 and 25 and Rule 25-1, otherwise known as the “mandatory close-out rule,”[23] clearly vest upon petitioner the obligation, not just the right, to cancel or otherwise liquidate a customer’s order, if payment is not received within three days from the date of purchase. The word “shall” as opposed to the word “may,” is imperative and operates to impose a duty, which may be legally enforced. For transactions subsequent to an unpaid order, the broker should require its customer to deposit funds into the account sufficient to cover each purchase transaction prior to its execution. These duties are imposed upon the broker to ensure faithful compliance with the margin requirements of the law, which forbids a broker from extending undue credit to a customer.


It will be noted that trading on credit (or “margin trading”) allows investors to buy more securities than their cash position would normally allow.[24] Investors pay only a portion of the purchase price of the securities; their broker advances for them the balance of the purchase price and keeps the securities as collateral for the advance or loan.[25] Brokers take these securities/stocks to their bank and borrow the “balance” on it, since they have to pay in full for the traded stock. Hence, increasing margins[26] i.e., decreasing the amounts which brokers may lend for the speculative purchase and carrying of stocks is the most direct and effective method of discouraging an abnormal attraction of funds into the stock market and achieving a more balanced use of such resources.


“x x x [T]he x x x primary concern is the efficacy of security credit controls in preventing speculative excesses that produce dangerously large and rapid securities price rises and accelerated declines in the prices of given securities issues and in the general price level of securities. Losses to a given investor resulting from price declines in thinly margined securities are not of serious significance from a regulatory point of view. When forced sales occur and put pressures on securities prices, however, they may cause other forced sales and the resultant snowballing effect may in turn have a general adverse effect upon the entire market.”[27]


The nature of the stock brokerage business enables brokers, not the clients, to verify, at any time, the status of the client’s account.[28] Brokers, therefore, are in the superior position to prevent the unlawful extension of credit.[29] Because of this awareness, the law imposes upon them the primary obligation to enforce the margin requirements.


In securities trading, the brokers are essentially the counterparties to the stock transactions at the Exchange.[35] Since the principals of the broker are generally undisclosed, the broker is personally liable for the contracts thus made.[36] Hence, petitioner had to advance the payments for respondent’s trades. Brokers have a right to be reimbursed for sums advanced by them with the express or implied authorization of the principal,[37] in this case, respondent.


It should be clear that Congress imposed the margin requirements to protect the general economy, not to give the customer a free ride at the expense of the broker.[38] Not to require respondent to pay for his April 10 and 11 trades would put a premium on his circumvention of the laws and would enable him to enrich himself unjustly at the expense of petitioner.


Second Issue:

Jurisdiction

It is axiomatic that the allegations in the complaint, not the defenses set up in the answer or in the motion to dismiss determine which court has jurisdiction over an action.[44] Were we to be governed by the latter rule, the question of jurisdiction would depend almost entirely upon the defendant.[45]

The instant controversy is an ordinary civil case seeking to enforce rights arising from the Agreement (AOF) between petitioner and respondent. It relates to acts committed by the parties in the course of their business relationship. The purpose of the suit is to collect respondent’s alleged outstanding debt to petitioner for stock purchases.


The Citations:


[20]Mary Ann L. Ojeda, Securities Regulation Code with Annotations, 2002, p. 92.


[26]Margin refers to the percentage of the value which must be paid in cash by the purchaser. (Ojeda, supra at note 20).


The citation of my book Securities Regulation Code With Annotations and the "few" original ideas expressed therein by the Supreme Court makes me feel like I am an authority on the subject. And why am I surprised? it is worth sharing how the Book came about which will be in another blog entry.

Thursday, May 27, 2010

PERSONAL PICK: Expunge the Legalese in Me...


I am currently attending a Mandatory Continuing Legal Education (MCLE)classes to complete my Compliance 3 which ended last April 14, 2010. Yea, I am late and cramming! But after this Series 49 (a full package of 36 units with Legal Advantage plus 4 units on Legal Ethics with Chan Robles Lawnet, MCLE providers), I will have 23 units credited for MCLE 4 and only need 13 units until April 14, 2013.

MCLE is a continuing legal education required of members of the Integrated Bar of the Philippines (IBP) to complete at least thirty-six (36) hours of legal education activities every three (3) years.

The first session of Legal Advantage Series 49 is on Legal Writing and Oral Advocacy which is a part of my lacking units for MCLE 3. Atty. Rose Marie King - Dominguez, a partner of SyCip Salazar Hernandez & Gatmaitan is the lecturer. She said that effective legal writing must be clear and useful which means discarding the "legalese".

Legalese is a law jargon, a language that is typically used in legal documents and is generally considered by lay people to be difficult to understand. Looking at the blog "Party of the First Part", I guess I am guilty as charged! In contracts I still use some legalese like:

ab initio - use "from the beginning"
Null and void - use "ineffective, cancelled"
Know All Men By These Presents - remove it. it simply means "look out here comes a legal document".
Witnesseth - remove it.

For a complete list of legalese,checkout the blog "Party of the First Part" which in itsef is a legalese.

Wednesday, April 14, 2010

FAMILY FIX: Correction of Erroneous Gender/Sex on Birth Certificate



Today I had a walked - in - client who visited me at home. She is my first client to do so since I moved in our village almost 4 years ago. I don't really take on individual clients except for a few friends and those assigned to me by the J.Reuben Clark Law Society Philippines Chapter given the very busy corporate practice.

Anyway, the client is a very concerned mom, who is a mother of a 7-year old girl whose SEX/GENDER was erroneously entered as MALE in her Certificate of Live Birth. She is seeking to change said minor's sex / gender before she begins school and she has been looking for a lawyer for almost two months now until she met my sister-in-law Amy who suggested that she visits me.


I accepted the case.


The petition is pursuant to Article 412 of the Civil Code of the Philippines which was amended by Republic Act (R.A.) No. 9048 in so far as clerical or typographical errors are involved, to wit:



ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.
Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:SECTION 2. Definition of Terms. – As used in this Act, the following terms shall mean:xxx xxx xxx(3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner. (emphasis supplied).”


Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court, to wit:



Rule 108, Section 2.Entries subject to cancellation or correction.- Upon good and valid grounds, the following entries in the civil register may be canceled and corrected:(a) Births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization, (k) election, loss, or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name.”


Hence, the Petition under Rule 108 of the Rules of Court.


1) the mistake was an oversight not attributable to the petitioner nor the minor and something which they have no control;

2) as a mother of the MINOR, she can attest that she has given birth to a female, and she has been and still a female as of date;
3) the sex of the MINOR is female as visually seen by the birth attendant who has examined the genitals of the infant at the time of birth.
4) the medical records of the MINOR when she was one (1) day old and admitted at the the hospital indicated the SEX of the MINOR as FEMALE.
5) the X-ray film taken of the MINOR when she was one (1) day old and admitted at the hospital would readily show the female organ of the MINOR. Further, the hospital file (Case No.) indicated the SEX of the MINOR as F (which stands for FEMALE).
6) the medical records of the MINOR when she was three (3) years old and admitted indicated the following remarks “Patient delivered to a live baby girl by normal spontaneous delivery. Baby, however, brought to hospital because of difficulty of breathing”.
7)The MINOR does not have any outstanding judgments, has never been convicted of a crime, and is not involved in any pending legal actions.
8)The MINOR has been born as a “female” and that she had always identified herself as girl since childhood and has not undergone any sex/gender transformation from "male" to “female”.
9)The Petition is filed by petitioner not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making the birth records of her MINOR daughter compatible with her actual sex of being a FEMALE since a person’s sex is an essential factor in marriage and family relations, legal capacity and civil status.

Wednesday, March 10, 2010

MARRIAGE MATTER: Petition for Recognition of a Foreign Divorce



I received a Request For Legal Assistance Form from a sister A of Marikina City. She is asking the J. Reuben Clark Law Society Legal Aid to assist her in filing a nullity of marriage against her former husband, J. However, the review of the facts of the case finds the application of the relative divorce provision found in the second Paragraph of Section 26, of the Family Code which states:
"Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38. (17a)


Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (As amended by Executive Order 227)"


The Facts:

J, a Filipino, married A, who was likewise a Filipino citizen, in Quezon City, on June 5, 1970. They lived together as husband and wife in the Philippines. Sometime in 1989, J left for the United States and never returned since then. In 1992, a notice of filing of divorce commenced by J against Adela was received by A asking her to sign the documents. A did not sign the documents. Sometime in 1993, a notice of judgment purportedly dissolving the marriage, was issued by the Los Angeles County Court of California, USA. The judgment states that "spouses can remarry after August 20, 1993".

On November 2001, A married F. Now, in order to fully serve in the Church and be sealed to F, A sought the Law Society's help in securing a termination of her marriage with J through the known mode of Petition for a Nullity of Marriage based on Article 36 - Psychological Incapacity.

The Jurisprudence:

In GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO vs. REDERICK A. RECIO,[G.R. No. 138322. October 2, 2001], the Supreme Court through Justice J. Panganiban states that "A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgments; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence".

So long as it can be verified that Jaime is already a naturalized American citizen in 1992 when he filed for divorce, then the Divorce he obtained in America was valid and can be recognized in Philippine jurisdiction through a Petition for Recognition of a Foreign Divorce Decree under Rule 39, Section 48 of the Rules of Court. This is so because Jaime was no longer a Filipino citizen when the Divorce Decree was issued. This issue was already settled by the Supreme Court in Llorente versus Court of Appeals G.R. No. 124371. November 23, 2000. This also entitles Adela to marry again.

In Republic v. Orbecido III, the Supreme Court spelled out the twin elements for the applicability of the second paragraph of Art. 26, thus:
x x x [W]e state the twin elements for the application of Paragraph 2 of Article 26 as follows:

1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.[45]

Both elements obtain in the instant case. We hope to find a Certification of Jaime's naturalization from the American Services Division of the US Embassy.