Philippine Supreme Court Resolutions > Year 2012 > March 2012 Resolutions > [G.R. No. 176323 : March 14, 2012] LENY B. DIAZ AND SPOUSES ANTONIO B. ESCALONA AND LEONORA ESCALONA VS. CHERRIE PINEZA AND KOJI HAMAMURA :

Please take notice that the Court, Third Division, issued a Resolution dated 14 March 2012, which reads as follows:cralaw

G.R. No. 176323 - LENY B. DIAZ AND SPOUSES ANTONIO B. ESCALONA AND LEONORA ESCALONA VS. CHERRIE PINEZA AND KOJI HAMAMURA

RESOLUTION 

After a review of the records, the Court resolves to DENY  the instant petition for failure to show that the Court of Appeals (CA) committed any reversible error in declaring the RTC Decision dated Match 10, 1998, Amended Decision dated March 24, 1998, Re-Amended Decision dated June 1, 1998 and Order dated June 25, 1998 in Civil Case No. 97-82409 null and void for lack of jurisdiction and extrinsic fraud. Contrary to petitioners' claim, an action to annul a deed of real estate mortage is an action in personam, hence, personal service of summons within the forum is required before the trial court could acquire jurisdiction over the person of the defendant. That respondent Koji Hamamura was a non-resident defendant who is not found in the Philippines will not justify summons by publication. Under Section 17, Rule 14 of the old Rules of Court (which is applicable in this case since the complaint was filed prior to the effectivity of the 1997 Rules of Procedure on July 1, 1997), extraterritorial service of summons is allowed only in actions in rem and quasi in rem.

Assuming arguendo that Civil Case No. 97-82409 was a real action as Diaz prayed for the issuance of new title over the subject property, still, the instant petition must fail since there was no full compliance with the requirements for a valid service of summons by publication as provided for under Section 17 in relation to Section 21, Rule 14 of the old Rules (now, Sections 15 and 19, Rule 14 of the 1997 Rules of Civil Procedure), to wit; (1) a copy of the publication was not attached to the Publisher's Affidavit; and (2) Diaz failed to submit an affidavit showing the deposit thereof "in the post office, postage prepaid, directed to the defendant by registered mail to his last known address."

On the other hand, the Court concurs with the finding of the CA that Diaz's act of concealing the correct address of her estranged husband, Hamamura, amounted to extrinsic fraud which is defined as that which "prevents a party from having a trial or from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured. The overriding consideration when extrinsic fraud is alleged is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court.^[1]"

Accordingly, the assailed RTC decisions being null and void for lack of jurisdiction, no reversible error was committed by the CA in holding that laches has not set in against respondents. (Mendoza, J., no part, as he penned the assailed CA decision. Villarama, J., designated Member per Raffle dated March 14, 2012.)cralaw

SO ORDERED.

Very truly yours,

(Sgd.) LUCITA ABJELINA-SORIANO
Division Clerk of Court

Endnotes:

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^[1] Marcelino Lopez, et al. v. Jose Esquivel, Jr. and Carlito Talens, G.R. Nos. 168734 & 170621, April 24, 2009, 586 SCRA 545.