REPUBLIC OF THE PHILIPPINES

MUNICIPAL TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGION
PASAY CITY
BRANCH 24

Nana Noodleman,
Plaintiff,

- versus - Civil Case No. 854145

FOR: Unlawful Detainer with Damages

Buster Moon,
Defendant.
x-------------------------------------x

MEMORANDUM

Plaintiff, NANA NOODLEMAN (hereafter, “Nana” or “Plaintiff”),

by counsel and to this Honorable Court, most respectfully submits its
Memorandum in the above-captioned case and in support hereof hereby
states:

PREFATORY STATEMENT

This is an action of Unlawful Detainers with Damages filed by herein

Plaintiff as the absolute and registered owner of the Retail Unit against the
Defendant Buster Moon before this Honorable Court.

THE PARTIES

1. Plaintiff, NANA NOODLEMAN, is of legal age, Filipino citizen, single,

with residence and postal address at Unit 307, La Verti Residences, Brgy.
Dolorasa, Donada Street, Pasay City;

2. Defendant, Buster Moon, is of legal age, Filipino citizen, single, with

residence and address at 157, Brgy. Malibay, San Isidro Street, Pasay City

STATEMENT OF FACTS AND THE CASE

1. Nana Noodleman is the registered and landowner of the property

located at 345 Brgy. Mapagpala, San Lorenzo Street, Pasay City where the
Theater is located, (the “Retail Unit”) as covered by the Transfer Certificate
of Title (“TCT”) No. 058-20100001010 of the Registry of Deeds for Pasay City
and the corresponding Tax Declaration No. EB-10-32593.1

2. Nana Noodleman and Buster Moon entered into a Contract of Lease

(“Contract”) 2over the Retail Unit with Nana as Lessor and Buster Moon as
Lessee. Section 1 of the Contract provides:

“1. Term: This lease shall be for a term of two (2) years,
commencing on 01 July 2014 and expiring on 30 December
2016 (the “Rental Commencement Date”), unless earlier
terminated by the LESSOR by giving the LESSEE written
notice of such termination. Without prejudice to the other
grounds for pre-termination provided in this Contract, the
LESSOR reserves the right to pre-terminate the lease, upon
2 months’ written notice to the LESSEE, in the event that
the LESSOR decides to re-develop the Leased Premises for
other intended uses.

Unless otherwise renewed by the parties in writing, this

lease shall not be deemed extended beyond the date
specified herein for its termination for any reason
whatsoever. There shall be no tacit renewal of this
Contract, notwithstanding the continuation of the
LESSEE’s possession of the Leased Premises for any length
of time after expiration of the term of this lease.”

3. During the term of the lease, Defendant fails to pay his rental
obligations from July 2015 to June 2017. Wherein Plaintiff sent a statement
of accounts and reminder letters to the Defendant. 3

4. Considering the persistent failure to settle its rental obligation in a

timely manner and its failure to fully pay the rental pay amounting to
Php1,225,000.00, which constituted contractual breach, Plaintiff sent a
termination letter 4dated 01 September 2016 terminating the lease contract of
Defendant effective 01 October 2016 from whence, defendant’s possession
of the Rental Unit had become unjustified and unlawful. This was
pursuant to Section 18 of the Contract, which for “termination of lease” as
follow:

1
A copy of TCT No. 058-20100001010 is attached to the Complaint as Annex “A.” A copy of Tax Declaration is
attached to the Complaint as Annex “B”.
2
A copy of the Contract of Lease is attached to the Complaint as “Annex C”.
3
Copies of Statement of Accounts and Reminder Letter are attached to the Complaint as Annexes “D to D-23” and
Annexes” E to E-6”.
4
A copy of Termination Letter is attached to the Complaint as Annex F.
 “Upon the cancellation or termination of the lease due to a
default on the part of the Lessee, failure to pay or any other
amount due or upon expiration of the lease, the Lessee shall
peacefully and immediately vacate the Leased Property
within thirty (30) days from such cancellation or
termination and, at the option of the Lessor, either return
possession thereof to the Lessor, free and clear of all
improvements made thereon by the Lessee, or for Lessee
to leave the Leased Property as it is with the permanent
improvements to the Lessor (except movable properties
belonging to the Lessee, which can be removed without
damaging the Leased Property) without any obligation on
the part of the Lessor to pay for the remaining value of
such improvements and without necessity of executing
further instruments.”5

5. Despite the termination of the lease, Defendant continued to stay in

the Retail Unit. Plaintiff, thus, sent several statements of account for
payment of hold-over to Defendant, which were unheeded. This was
pursuant to Section 20 of the Contract, which for “hold-over charges” as
follow:

“If the LESSEE fails to return the Leased Premises to the

LESSOR at the end of the term of this lease, the LESSEE
shall pay the LESSOR, as damages, a sum equal to the Rent
to be paid by the LESSEE to the LESSOR for the period
during which the LESSEE retains possession of the Leased
Premises. The exercise by the LESSOR of its rights shall not be
interpreted as a grant of permission to the LESSEE to continue
in possession of the Leased Premises beyond the term of this
lease.”6

6. In spite of several demand letters 7sent to Defendant, reiterating the

request of plaintiff upon the Defendant, the Defendant failed and still
refused to vacate the Rental Unit and settle its outstanding obligations.

7. Thus, Buster Moon had been occupying the Retail Unit illegally.

8. On 23 June 2017, Plaintiff was constrained to serve its final demand by

posting a copy thereof at the Retail Unit, and by serving personally and
through registered mail (“Final Demand”). 8The Final Demand states:

5
Emphasis and underscoring supplied.
6
Emphasis and underscoring supplied.
7
Copies of demand letter are attached to the Complaint as Annexes G to I.
8
Copies of final demand letter are attached to the Complaint as Annexes J to L.
 “In view of the foregoing, this will therefore serve as our
FINAL DEMAND to you to settle the unpaid rental
inclusive of interests, penalties and hold-over charges and
to vacate the leased premises within FIVE (5) DAYS from
receipt hereof. Otherwise, we shall initiate the necessary
ejectment proceeding against you without any further
notice.”

9. Notwithstanding Plaintiff’s demand to pay and vacate, Respondent

failed to do so.

10. In view of the inaction of the Defendant on the demand, Plaintiff has
no recourse but to file a Complaint for Unlawful Detainer with Damages
against Respondent before this Honorable Court.

11. Defendant t duly filed their Answer to the Complaint. Issues having
been joined and the parties filed their respective Pre-trial Briefs.

12. During the trial, Plaintiff presented Nana Noodleman and Ash Ortega
as their witnesses.

13. Also, Respondent presented Rosita Piggy, Crawly One Eye and Buster
Moon as their witnesses.

14. Considering the both parties rest their cases, this Honorable Court
issued an Order giving gave the parties until 25 October 2017 within which
to file their respective memoranda after which the case shall be submitted
for decision.

15. Hence, the submission of this Memorandum.

ISSUES

16. On the basis of the stipulation of issues submitted by the parties, and
approved by the Honorable Court, the following are the legal issues:

(i) Whether or not Defendant is liable for breach of contract; and

(ii) Whether or not Plaintiff is entitled for damages.

 ARGUMENTS/DISCUSSION

17. First, since Plaintiff is the absolute and registered owner of the Retail
Unit, it has the right to enjoy and use it, and a concomitant right of action
against unlawful holders and possessors in order to recover the same.9

18. As discussed above, as early as 15 February 2016 already notified

Defendant of payment of his rental obligations and to vacate the Retail Unit.
However, Defendant continued to use the Retail Property even the contract
was terminated.

19. Second, Respondent had been occupying the Retail Unit without
paying any corresponding rent to Plaintiff. Under law, Defendant, as lessee
clearly has the obligation to pay Plaintiff, its lessor due rental.10

20. Finally, Defendant continued to unjustly deprive Plaintiff of

possession thereof. Hence, Plaintiff had every right to cause the ejectment
of Respondent from the Retail Unit pursuant to Article 1673 of the Civil
Code 11which gives the lessor, Plaintiff, the right to judicially eject the lessee,
Defendant, from the Retail Unit upon the expiration/termination of the
subject contract.

21 Because of Defendant’s abject failure to comply with its obligations in

this regard, Plaintiff was constrained to issue its Final Demand as against
Defendant. Plaintiff further demanded payment from Defendant for its
accrued rental-in-arrears through its Final Demand to Pay Arrears and to
Vacate the Premises. Notwithstanding the foregoing, Respondent
obstinately refused to accede.

22. Indeed, in action for Unlawful Detainer, the essential elements that
need to be established are simply: (1) the fact of lease by virtue of a contract
express or implied; (2) the expiration or termination of the possessor’s right
to hold possession (3) the withholding by the lessee of the possession of the
land or building after expiration or termination of the right to possession;
(4) letter of demand upon the lessee to pay the rental or comply with the
terms of the lease and to vacate the premises; and (5) the action must be filed
9
Civil Code, Art. 428.
10
Civil Code, Article. 1657.
11
This provides:
“Article 1673.The lessor may judicially eject the lessee for any of the following causes:
1. When the period agreed upon, or that which is fixed for the duration of lease under Articles 1682 and
1687, has expired;
2. Lack of payment of the price stipulated;
3. Violation of any the conditions agreed upon in the contract;
4. When the lessee devotes the thing leased to any use or service not stipulated which causes the
deterioration thereof; or if he does not observe the requirement in No. 2 of Article 1657, as regards the use
thereof.
The ejectment of tenants of agricultural lands is governed by special law.”
within one (1) year from the date of last demand received by the Defendant.
12All of the foregoing were duly established by Plaintiff.

23. If the Lessee continues enjoying the thing after the expiration of the
contract, overt the lessor’s objection, the former shall be subject to
responsibilities of a possessor in bad faith13.

24. It bears emphasizing that all of the foregoing has never been contested
by Defendant. Clearly, throughout the entire length of the proceeding,
Plaintiff has meritoriously shown its entitlement to the ejectment of
Defendant from the Retail Unit, and its entitlement to damages in the form
rentals-in-arrears by reason of Defendant’s action and conduct.

25. As admitted by the Defendant, Buster Moon, during cross

examination held on 11 October 2017, she personally validate/confirm the
owner of the Retail Unit:

“Atty. Biason

Question: Who is the owner of the Theater?

Buster Moon

Answer: Nana.

Xxx”

26. The fact remains, therefore, that Nana Noodleman is the rightful
owner of the Retail Unit.

27. Moreover, the TCT presented by the plaintiff during the offer was not
denied by the Defendant, considering that this title was registered under the
name of Nana Noodlman.

28. Similarly, the Defendant did not present any proof in terms of
payment or the amount he paid in consideration of the Deed, he did not
register the document of sale or annotated at the back of title or better still,
the TCT No. 058-20100001010 was never cancelled. No evidence was
presented to show that the Deed of Absolute Sale is valid between Buster
Moon and Crawly One Eye.

29. With regard to the Acknowledgment Receipts, Plaintiff is without

knowledge or information sufficient to form a belief as to the veracity of the

12
Dela Cruz vs Court of Appeals, G.R. No. 139442, 6 December 2006, 510 SCRA 103,116.
13
Civil Code, Article 1671
Acknowledgment Receipt. Plaintiff never received any payment nor issued
an Acknowledgment Receipts to the Respondent. Nana Noodleman always
issues an Original Receipt not a mere Acknowledgment Receipt. The
Acknowledgement Receipts that presented by Defendant was not original
and that the signature of the Plaintiff was forged.

30. Based on the testimony of Buster Moon, he alleged that Nana

Noodleman signed the Acknowledgment Receipts in front of him. However,
on the Acknowledgment Receipts presented during the trial, its showed that
the Acknowledgment Receipts for two (2) months appears on the same sheet
of paper.

31. With regards to the alleged Irrevocable Special Power Attorney given
to Crawly One Eye, Plaintiff denies the Irrevocable Special Power of
Attorney. Crawly One Eye is not an Agent of Plaintiff and Plaintiff did not
authorize nor appoint anyone especially Crawly One Eye to sell her
property. In fact, Plaintiff did not personally know Crawly One Eye.

32. Additionally, the Respondent did not present any witness that can
corroborate that Nana Noodleman signed and executed an Irrevocable
Special Power of Attorney in favor of Crawly One Eye.

33. In view of the foregoing discussions, Defendant’s continued illegal

and unjustified occupation and possession of the said Retail Unit and refusal
to vacate the same and to peacefully surrender thereof to herein Plaintiff is
working grave injustice and causing irreparable damage to the latter, for
which Defendant or its assets are grossly insufficient to answer for or to
compensate/indemnify Plaintiff for such and losses.

34. As such, Plaintiff is losing revenue and incurring damages each day
Defendant unlawfully withholds possession of the Retail Unit from Plaintiff
and it is doubtful that Defendant no longer operates its business in the Retail
Unit and it does not appear to have sufficient assets to answer even for its
past obligations, much less for damages which Plaintiff continues to incur
by reason of such unjustified possession.

35. If after trial the court finds that the allegations of the complaint are
true, it shall render judgment in favor of the Plaintiff for the restitution of
the premises, the sum justly due as arrears of rent or reasonable
compensation for the use and occupation of the premises, attorneys fees and
costs14. If it finds that said allegation are not true, it shall render judgment
for the Defendant to recover his costs. If a counterclaim is established, the
court shall render judgment for the sum found in arrears from either part
and award costs as justice required.
14
Emphasis and underscoring suppliedsRules of Court, Section 17, Rule 70.
36. The recoverable damages in unlawful detainer case refer to rents or the
reasonable compensation for the use and occupation of the premises or fair
rental value of the property and attorney’s fees sand costs. 15

37. Plaintiff is entitled to reliefs demanded and the who part of such relied
consist in the immediate delivery and surrender by the Defendant of the
possession of the Retail Unit to the Plaintiff.

PRAYER

WHEREFORE, it is most respectfully prayed unto this Honorable

Court that, after due hearing, judgment be rendered in favor of the Plaintiff.

a) Ordering the Defendant, to vacate the Retail Unit, particularly

345 Brgy. Mapagpala, San Lorenzo Street, Pasay City which
Theater is covered by Tax Declaration No. EB-10-32593 and
standing on the land covered by Transfer Certificate of Title No.
058-20100001010 of the Registry of Deeds for Pasay City,
registered under Plaintiff’s name, and to peacefully turn over the
possession thereof to the Plaintiff in tenantable condition.

b) Ordering Defendant to pay Plaintiff its outstanding rental

obligations covering the period from 1 July 2015 to June 2017
amounting to PhP1,225,000.00 (inclusive of interest and penalties
as of 23 June 2017) plus incremental interest until paid in full.

c) Ordering Defendant to pay Plaintiff damaged by way of

reasonable at the sound discretion of the Honorable Court from
unjustified hold-over or illegal possession of the Rental Unit
commencing on 1 October 2016 and until actual turn-over and
return of possession of the Rental Unit to Plaintiff.

d) Ordering Defendant to pay cost of suit.

Other reliefs just and equitable under the premises are likewise prayed for.

25 October 2017, Pasay City, Philippines.

15
Herrera vs Bollos, G.R. No. 138258.
 BIASON LLENA MALOTA QUIAMCO & YBAÑEZ LAW OFFICE
Counsel for the Plaintiff
Unit 107 Avida Towers Prime Taft, Pasay City
Telephone No. 585-0393 / 908-9391
Facsimile No. 848-1598

By:

KIM MARK F. BIASON

PTR No.549378; January 06, 2017; Pasay City
IBP Lifetime No. 987654; Pasay City Chapter
MCLE Compliance No. V-000100; May 02, 2016

SARAH SHEEN A. LLENA

PTR No. 987654; January 06, 2017; Pasay City
IBP Lifetime No. 123456; Pasay City Chapter
MCLE Compliance No. V-000200; May 02, 2016

CECILE S. MALOTA
PTR No. 325476; January 06, 2017; Pasay City
IBP Lifetime No. 741852; Pasay City Chapter
MCLE Compliance No. V-000300; May 02, 2016

JUSTINE AARON G. QUIAMPCO

PTR No. 964889; January 06, 2017; Pasay City
IBP Lifetime No.963852; Pasay City Chapter
MCLE Compliance No. V-000400; May 02, 2016

EVANGELINE M. YBAÑEZ
PTR No. 654831; January 06, 2017; Pasay City
IBP Lifetime No.852146; Pasay City Chapter
MCLE Compliance No. V-000500; May 02, 2016

Copy Furnished:

Atty. Mark Anthony P. Pacete

Atty. Venus De Guzman
Atty. Ariel Dassun
Atty. Rafael Catolico
Atty. Ronel Batidio
Counsel for Defendant
Unit 101 Laverti Tower, Pasay City
REPUBLIC OF THE PHILIPPINES )
PASAY CITY, METRO MANILA ) S.S.

AFFIDAVIT OF SERVICE

I, JOSE DELA CRUZ, as Liaison Officer of BIASON LLENA MALOTA QUIAMCO &
YBAÑEZ LAW OFFICE with office address at Unit 107 Avida Towers Prime Taft, Pasay
City, after being duly sworn, depose and say:

That on 24 October 2017, I served a copy of the PRE-TRIAL BRIEF for the case entitled,
“Nana Noodleman vs Buster Moon” docketed as Civil Case No. 854145 pursuant to Section
3, 4, 5 and 10, Rule 13 of the Rules of Court, as follows:

By Personal Service:

Atty. Mark Anthony P. Pacete

Atty. Venus De Guzman
Atty. Ariel Dassun
Atty. Rafael Catolico
Atty. Ronel Batidio
Counsel for Defendant
Unit 101 Laverti Tower, Pasay City

Pasay City, 24 October 2017.

Jose Dela Cruz

Affiant

SUBSCRIBED AND SWORN to before me this 24 October 2017 at Pasay City,

affiant personally known to me to be the same person who executed this affidavit and
exhibiting to me his Social Security System I.D. No. 03-5012846-7.

Doc. No. 42; DUNKIN MENDO

Page No. 10; Notary Public – Pasay City
Book No. V; Appt. 299 until December 31, 2017
Series of 2017. Attorney’s Roll No. 12345
PTR No. 258743/01/06/17/Pasay City
MCLE COMPLIANCE NO. V-6549321; April 5, 2017
G/F Harisson Plaza, Pasay City