nas JRAR6 Jaty ma cadangdang od Republic of the Philippines uw REGIONAL TRIAL COURT Branch 54 Davao City GEMMALYN PAICAN Civil Case No. R-DVO-19-00519-CV Plaintiff, For: DECLARATION OF NULLITY OF LOAN AGREEMENT AND DEED OF ASSIGNMENT, AND FOR DAMAGES -versus- UNIONBANK OF THE PHILIPPINES and FIRST UNION PLANS, INC., Defendants. COMMENT ON THE MOTION TO DISMISS COMES NOW the Plaintiff, assisted by the undersigned counsel, to this Honorable Court, stating that: 1. The Plaintiff is filing this Comment pursuant to the Order of the Honorable Court in this case dated April 26, 2019 and received by the undersigned counsel on May 5, 2019, giving the Plaintiff fifteen (15) days from receipt to comment on the Motion to Dismiss; 2. Instead of filing an Answer, the Defendants filed a Motion to Dismiss on the ground of the failure of the complaint to state a cause of action because allegedly, the Certification issued by Unionbank is enough basis for the extinguishment of their obligation to Gemmalyn Paican, the Plaintiff; Motion to Dismiss was Filed Out of Time 3. The Defendants rec: March 6, 2019; d 2 copy of the summons in this case on 4. Under Rule 16, Section 1 of the 1997 Rules of Civil Procedure, a motion to dismiss should be filed within the required time given to file an answer to the complaint, which is 15 days from service of summons on the defendant;5. The Motion to Dismiss was filed on April 16, 2019 which is beyond the period for the filing of an Answer; 6. For being filed beyond the regiementary period, the Motion to Dismiss must be denied; On the Failure to State a CAUSE OF ACTION 7. in the simplistic understanding of Unionbank and First Union Plans Inc., if Unionbank cancelled the loan, then there is a failure on the part of the Plaintiff to state cause of action; 8. This argument is an easy way out but unfortunately, the premise on which the argument is based is false; 9. The Complaint clearly stated and established causes of action based on: ONE, breach of contractual obligation (i.e, to treat Plaintiff's accounts and investments with extraordinary diligence) for which the remedy of cancellation of the fake loan; the production of the documents shawing investigation results for the fake loan; the production of proof that appropriate cases had been filed against erring employees; return of the investment policies; and a certification that the investments are and had never been encumbered or assigned; AND TWO, for damages due to breach of contract, fraud, and negligence as provided in Article 1170 of the Civil Code which provides that “Those who in the performance of their obligations are guilty of fraud, negligence, or detay, and those who in any manner contravene the tenor thereof; are liable for damages."; 10. Wrongs had been committed to the Plaintiff by the Defendants through their employees and remedies are sought by the Plaintiff from the courts for the invasion of the Plaintiff's rights; 11. The cancellation of the fake loan is not the obligation which establishes a cause of action. The cancellation of the fake loan is a remedy sought for the preach. It is the breach of obligation which establishes a cause of action; 12. A complaint states a cause of action if it sufficiently avers the existence of the three (3) essential elements of a cause of action, namely: (a) a right in favor of the plaintiff by whatever means and under whatever Yaw it arises or is created; (b) an obligation on the part of the named defendant to respect or not to violate such right; and (c) an act or omission on the part of the named defendant violative of the right of the plaintiff or constituting a breach of the obligation of defendant to the plaintiff for which the latter may maintain an action for recovery of damages; 13. What is the obligation of Unionbank of the Philippines and First Union Plans Inc. to the Plaintiff? The obligation of Unionbank of the Philippines to thePlaintiff to treatall of the Plaintiff's bank accounts and investments with utmost and meticulous diligence-one higher than that expected of a good father of the family. Corollary to this obligation. Further, it is established that banks have a “direct obligation to supervise very closely the employees handling its depositors’ accounts, and should always be mindful of the fiduciary nature of its relationship with the depositors. x x x. If it fell short of that obligation, it should bear the responsibility for the consequences to the depositor x x x"; 14. Similarly, First Union Plans Inc. has the obligation, under the terms of the investment, to exercise care, prudence, diligence in treating the PHP 20 Million investment of the Plaintiff--- which necessarily includes the obligation to prevent the wrongful assignment of the investment policies of the Plaintiff as collateral for a FAKE BANK LOAN; 15. Did Unionbank and First Union Plans breach their obligations to the Plaintiff? YES; 16. Unionbank did breach its obligations to the Plaintiff by: One, Unionbank failed in its supervision of its bank employees who manipulated bank documents (loan documents, bank deposit slips, bank checks, etc.) to avail of a SIXTEEN MILLION PESO LOAN in the name of the Plaintiff. Two, Unionbank failed to properly install audit, clearance, account reconciliation, and other procedures that would have forestalled the criminal acts of its employees. It is beyond the stretch of imagination for Unionbank to say that it is NOT liable when its employees were able to encash checks and enable transfers amounting to MILLIONS without the knowledge and consent of its depositor- Plaintiff Gemmalyn Paican; 17. First Union Plans Inc. of course breached its obligations when the Plaintiff's investment policies were assigned as loan collateral without Plaintiff's knowledge and consent; 18. Lastly, was their damage caused to the Plaintiff?; 19. The answer to the question is apparent- Yes, damage had been caused to the Plaintiff; 20. The argument of the Defendants that the Certification relieves the Defendants of any liability is similar to a thief’s contention that if the stolen thing had been returned, then there has been no theft committed; 21, The damage has been done and remedies, other than cancellation of the loan, had been sought by the Plaintiff not only in the Compiaint but in her oral and written demands; 22. Assuming arguendo that the certifications are enough to cancel the fake loans made in the name of the Plaintiff by Unionbank employees,the same would not extingulsh the liability of the Defendants for damages due to breach of contract, fraud, and negligence; 23. The demand letter clearly stated that the Plaintiff demanded the cancellation of the loan; a certification that her investment policies are unencumbered; a written result or explanation of their investigation on the acts of their employees in booking the fake loan and assigning Plaintiff's investments; the filing of the necessary cases against the bank's erring employees; moral damages; attorney's fees; and exemplary damages; 24. A perusal of the “Certification” attached by the Plaintiff do not, in any sense, come close to a fulfillment of the demands set forth by the Plaintiff. Be it noted also that the Plaintiff refused to receive the Certifications; 25. The SECOND Certification was merely delivered to Plaintiff's former counsel without conformity from said counsel or the Plaintiff; 26. The reasons for the Plaintiff's refusal to receive the Certifications are: One, THEY WERE NOTHING BUT MERE SCRAPS QF PAPER—- BEING UNSEALED, BEARING NO ORIGINAL SIGNATURE, and BEARING NO AGREEMENTS WITH REGARDS THE DAMAGES CLAIMED BY THE PLAINTIFF IN THEIR DEMAND LETTER; and Second, they were obvious means of the bank evading liability for the breach of its contractual obligations; 27. WHAT IS THE BEST EVIDENCE OF THE CANCELLATION OF A LOAN? As already raised by the Plaintiff to Unionbank, the only document Plaintiff will accept for the cancellation of the !can is a signed and SEALED LOAN CLEARANCE CERTIFICATION- not a one sentence note which could be prepared and signed by anyone; 28. Knowing Unionbank’s penchant for falsified and fake documents signed by their employees, the “Certifications” are nothing but scraps of paper; 29. Will Unionbank even entertain a person submitting the same kind of document to them to prove that the person has no outstanding loan? Clearly not; 30... What's sauce for the goose is sauce for the gander; 31. Furthermore, | ASSUMING — ARGUENDO — THAT —_THE “CERTIFICATIONS” COULD BE ACCEPTED AS PROOF OF THE CANCELLATION OF THE FAKE UNIONBANK LOAN, the same does not defeat the Plainti f_action_for Itin rs ni ich ui hausti in_th 31.1 The Plaintiff suffered moral damages by the Respondents’calloused and disrespectful response to her requests and demands---- a far cry from the extraordinary care required of the bank; 31.2 The bank officers DID NOT EVEN DIRECT THE PLAINTIFF TO THE APPROPRIATE OFFICER OR DEPARTMENT OR OFFICE WHO WILL HANDLE THEIR CLAIMS. ALL THE BANK OFFICERS COULD TELL THE PLAINTIFF WAS THAT THEY WERE NOT RESPONSIBLE FOR THE PLAINTIFF’S CONCERNS; 31.3 Also, the Plaintiff had been forced to litigate, paying both expensive filing fees and attorney's fees because the Plaintiff could not get a direct and proper response from the bank; 31.4 Apparently, Unionbank is covering up the crimes of its employees and defending a rotten yet sophisticated scheme of banking fraud and theft uncovered by an innocent depositor; 31.5 Moreover, the Plaintiff is NOT THE ONLY VICTIM of Unionbank Employees; 31.6 The dismissal of this case based on the Motion to Dismiss would encourage more thieves in Unionbank’s very loose banking system; 31.7 A case Is currently pending in the Davao City Prosecution Office filed by Unionbank against its employee Laurice Fuentes for qualified theft involving the account of one surnamed Coching; 31.8 As the Plaintiff could not access the case files because she is not a party thereto, the Plaintiff prays for the necessary subpoena duces tecum to compel Unionbank to produce the case documents, should the Honorable Court find the documents necessary to this case; 32. Further, until the date of this Comment, Unionbank had not filed any criminal cases against its erring employees in connection with the Plaintiff's account. The Plaintiff also had not received any report or response from Unionbank with regards the investigation of the complaint/case of the Plaintiff. Hence, aside from damages, the other remedies prayed for in the Complaint are still extant; 33. Lastly, did the “Certifications” extinguish any obligations in this case? No; 34. No signed and sealed Clearance had been produced; damages remain unsettled; and Unionbank had not submitted its investigation results nor filed any case agalnst its erring employees in connection with the Plaintiff's accounts; 35. IN FACT, THE CERTIFICATIONS WHICH STATED THAT THE LOAN HAD BEEN CANCELLED, DESPITE THE FACT THAT THE PLAINTIFF HAD NOT PAID THE AMOUNTS DEMANDED FROM HER FOR THE FAKE LOAN, WOULD PROVE THE PLAINTIFF'S POINT THAT THE LOAN WAS FALSIFIED BECAUSE THE BANK JUST “CANCELLED” IT WITHOUT PAYMENT;36. All told, the “Certifications” submitted in the Motion to Dismiss does not extinguish any obligation; 37. The Plaintiff's cause of action for annulment of the falsified loan and for damages based on negligence, fraud, and breach of contract had been clearly stated in the Complaint; 38. The Motion to Dismiss must therefore be denied. DONE THIS 16" day of May 2019 in Davao City, Philippines. St., Davao City, Philippines me RES JR., R.E.B. IBP No. 056892; 12/A}/ial(for 2019); Davao City PTR No. 1477667; 12/06/18 (for 2019); Davao City Roll No. 62817; MCLE Compliance No. V - 0012956; Valid until: 04/14/2019 MCLE Compliance No. VI- documents on precess mail@attytort com EXPLANATION A copy of this pleading is served through registered mail due to distance constraints. Atty. Edgar Y» Jr. R.E.B. Copy furnished: Office of the General Counsel 18" Floor Unionbank Plaza Meralco Ave. cor. Onyx and Sapphire Roads, Ortigas Center, Pasig City. RR. No. ¥0 43 rt ewe Ye: sfig[iq Atty. Raymund Hilarion Genilo Counsel for First Union Plans Inc. Unit 45, 2 Floor, San Pedro Town Center, National Highway, City of San Pedro, Laguna R.R. No, _@D O23 468 \rr 2B Date: s/ig} ia