Opposition To Motion For Summary Judgment CBR

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Republic of the Philippines

3rd MUNICIPAL CIRCUIT TRIAL COURT
JABONGA-KITCHARAO
Kitcharao, Agusan Del Norte
HEIRS OF THE LATE SPOUSES Civil Case No. 183

BENJAMIN M. BERMUDEZ and
ROSALINDA BALERO BERMUDEZ, For: Recovery of Possession
ET. AL., and Ownership with Damages
Plaintiffs,
- versus -
MELECIO MONTON, JOSEPHINE

MONTON FEDERICOS and JERRY
MONTILLA,
Defendants
X----------------------------------------------------X
OPPOSITION TO PLAINTIFF’S MOTION FOR

SUMMARY JUDGMENT
COMES NOW, the Defendants, through the undersigned counsel
and unto this Honorable Court, most respectfully avers:
The motion is fatally defective and should be considered a mere

scrap of paper, as a litigated motion without notice of hearing.
1. This motion should fail to impress the Honorable Court. Sec. 5,

Rule 15 of the 1997 Rules of Civil Procedure as amended is
pertinent thus:
Section 5. Notice of hearing. – The notice of hearing shall be addressed

to all parties concerned, and shall specify the time and date of the
hearing which must not be later than ten (10) days after the filing of the
motion. (Underscoring and italics supplied)
2. Being a litigated motion, the aforesaid rule should have been

complied with. Its non-compliance renders it defective. The
Rule is settled that a motion in violation thereof is pro forma
and a mere scrap of paper. It presents no question which the
court could decide upon. In fact, the court has NO reason to
consider it; neither does the clerk of court have the right to
receive the same. Palpably, the motion is nothing but an empty
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formality deserving no judicial cognizance. Hence, the motion

deserves peremptory denial for being procedurally defective.
Plaintiff’s prayer for relief betrays their own motion.
3. To be brief, this motion is grounded under Sec. 3, Rule 35 of the

1997 Rules of Civil Procedure. The trial court hears this
motion (but cannot hear it in this case because plaintiff’s
motion has no notice of hearing). If indeed there are no
genuine issues of material fact, the trial court shall issue
summary judgement based on the pleadings, affidavits,
depositions, and admissions on file submitted by the movant;
4. An issue of material fact exists if the answer or responsive

pleading filed specifically denies the material allegations of fact
set forth in the complaint or pleading. If the issue of fact
“requires the presentation of evidence, it is a genuine
issue of fact.” However, if the issue “could be resolved
judiciously by plain resort” to the pleadings, affidavits,
depositions, and other papers on file, the issue of fact raised is
sham, and the trial court may resolve the action through
summary judgment.;
5. The issue alluded to by plaintiffs is about the “sulong”, an

undeclared unassessed forest land, which they claim are theirs
without any basis whatsoever. The fifth (5th) prayer of plaintiff
betrays their own motion in that plaintiff asks to proceed to
trial and present evidence. To quote:
“5. Setting a trial for the plaintiffs to substantiate by

oral and documentary evidence their complaint that in
2007 defendants Montons encroached and dispossessed
them of one-half (1/2)-hectare portion of their
Sulong.”;
6. Clearly, the issues tendered in the answer and pleadings of the

defendants are genuine issues of facts. That is precisely why
the Honorable Court appointed a Commission with three (3)
geodetic engineers, to determine the issue of fact: Whether or
not there has been encroachments between the parties. The
fact that the “Sulong” was not included is well explained by the
Commissioners’ Report. There is no basis to survey the same.
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Defendants will no longer discuss at length their arguments for

the denial of this motion. We leave this to the discretion of the
Honorable Court.
PRAYER
WHEREFORE, Defendants pray that Plaintiff’s Motion be

DENIED, and a resolution be made taking into consideration
the results of the survey made by the Commissioners, both
parties having undertaken to be bound by the same;
Such other relief and remedies as may be deemed just and

equitable under the premises are likewise prayed for.
Respectfully Submitted. Kitcharao, Agusan Del Norte, September 4,

2017
Public Attorney’s Office

Cantilan District Office
Cantilan, Surigao del Sur
By:
Jo Edward F. Yecyec
Public Attorney II
Handling Lawyer
Roll No. 63079
IBP No. 1039486 01/07/17 Pagadian City, Zamboanga del Sur
[email protected]
PTR Requirement Exempt under Sec. 139 (d), R.A. 7160
MCLE requirement on process
EXPLANATION
Copy of this pleading is served thru registered mail due to distance of offices from plaintiff
and defendant’s counsels and lack of manpower.
CC://
Atty. Teodoro A. Emboy

Counsel for Plaintiffs
Datu Silongan, Del Pilar St.
Butuan City, Agusan Del Norte

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Republic of the Philippines

HEIRS OF THE LATE SPOUSES Civil Case No. 183

MELECIO MONTON, JOSEPHINE

OPPOSITION TO PLAINTIFF’S MOTION FOR

The motion is fatally defective and should be considered a mere

1. This motion should fail to impress the Honorable Court. Sec. 5,

Section 5. Notice of hearing. – The notice of hearing shall be addressed

2. Being a litigated motion, the aforesaid rule should have been

formality deserving no judicial cognizance. Hence, the motion

Plaintiff’s prayer for relief betrays their own motion.

3. To be brief, this motion is grounded under Sec. 3, Rule 35 of the

4. An issue of material fact exists if the answer or responsive

5. The issue alluded to by plaintiffs is about the “sulong”, an

“5. Setting a trial for the plaintiffs to substantiate by

6. Clearly, the issues tendered in the answer and pleadings of the

Defendants will no longer discuss at length their arguments for

WHEREFORE, Defendants pray that Plaintiff’s Motion be

Such other relief and remedies as may be deemed just and

Respectfully Submitted. Kitcharao, Agusan Del Norte, September 4,

Public Attorney’s Office

Atty. Teodoro A. Emboy

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