Republic of the Philippines

COURT OF APPEALS
Manila ----

NINTH DIVISION
***** THE MANILA BANKING CORPORATION, Plaintiff-Appelle, CA-G.R. CV NO. 88898

Members: TIJAM, N. G., Chairperson BARZA, R. F., and SORONGON, E. D., JJ.:

-versus-

ENVIRONMENT INTEGRATED SERVICES CORPORATION and RICARDO C. SILVERIO, SR., Defendants-Appellants, Promulgated: ESTEBAN YAU, Intervenor-Appellant. January 16, 2012

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DECISION
TIJAM, J.:
On appeal1 before this Court is the June 24, 2005 Decision2 and the October 14, 2005 Order3 of the Regional Trial Court (RTC) of Makati City, Branch 64, in Civil Case No. 90-271.
1 Brief (For the Defendants-Appellants Environment Integrated Services Corporation and Ricardo C. Silverio. Sr.) dated October 30, 2007, Rollo, pp. 116-148; Brief (For Intervenor-Appellant Esteban Yau), dated September 20, 2007, Rollo, pp. 66-98. 2 Decision of RTC Makati, Branch 64 (Penned by Judge Delia H. Panganiban), Records, pp. 261-272. 3 Order dated October 14, 2005 rendered by RTC Makati, Branch 64, Records, p. 312.

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The following are the antecedent facts: On January 31, 1990, Plaintiff-Appellee, The Manila Banking Corporation (TMBC), filed with the RTC Makati, Branch 64, a Complaint for Sum of Money with Application for Preliminary Attachment docketed as Civil Case No. 90-271,4 against DefendantsAppellants Environment Integrated Services Corporation (EISC) and its owner, Ricardo C. Silverio, Sr. (Mr. Silverio). In its Complaint, Plaintiff-Appellee alleged that on December 29, 1982, EISC obtained a loan/or credit accommodation evidenced by Promissory Note No. 11694,5 in the amount of P4,800,000.00 with 23% interest per annum. To secure the obligation covered by the Promissory Note, Mr. Silverio executed a Continuing Surety Agreement,6 dated January 4, 1983, wherein he solidarily bound himself with EISC for whatever unpaid obligation the latter owed from Plaintiff-Appellee but not to exceed P4,800,000.00. PlaintiffAppellee claimed that when Defendant-Appellant EISC failed to pay upon the Promissory Note's maturity on December 29, 1985, it sent a final demand letter7 dated January 25, 1990 to DefendantsAppellants. Despite repeated demands, however, DefendantsAppellants failed and refused to pay their obligations. To support their Application for a Writ of Preliminary Attachment based on Rule 57 of the 1989 Rules of Court, PlaintiffAppellee attached the affidavit8 of its Deputy Receiver, Mr. Ernesto E. Cavero (Mr. Cavero). On June 28, 1990, Defendants-Appellants were duly served with summons.9
4 5 6 7 8 9 Complaint filed by TMBC dated January 29, 1990, Records, pp. 1-17, Records, pp. 1-17. Records, p. 11. Records, pp. 12-13. Records, pp. 138-139. Records, Annex C, pp. 14-17. Order dated August 17, 1990 rendered by RTC Makati, Branch 64, Records, p. 99.

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On August 1, 1990, Defendants-Appellants, represented by their counsel, Atty. Emerito M. Salva of Salva and Associates, filed their Answer with Counterclaim,10 alleging the twin defenses of payment by means of set-off or legal compensation and estoppel on the ground of in pari delicto. Plaintiff-Appellee filed a Request for Admission,11 asserting, among others, that there was no agreement on set-off or compensation between Mr. Silverio and/or his affiliated companies, including EISC on one hand and Plaintiff-Appellee bank and/or its affiliates, on the other. Through Atty. Rolando A. Villacorta (Atty. Villacorta), an associate of the Salva, Villanueva and Associates law firm, Defendants-Appellants responded by filing a Comment to Request for Admission12 on March 15, 1991. The RTC set the hearing of TMBC's Application for Writ of Preliminary Attachment on September 24, 1990. TMBC's counsel and its witness, Deputy Receiver Mr. Benedicto De Guzman (Mr. De Guzman)13 were both present. Unfortunately, despite due notice, Defendants-Appellants and their counsel did not appear,14 prompting the RTC to rule that they were already deemed to have waived their right to present their evidence.15 After the hearing, RTC Makati, Branch 64, granted the application in its September 27, 1990 Order.16 A Writ of Preliminary Attachment was issued through the October 16, 1990 Order,17
10 11 12 13 14 15 16 17 Answer filed by EISC and Mr. Silverio dated July 30, 1990, Records, pp. 89-96. Request for Admission, Records, pp. 132-134. Comment to Request for Admission dated March 15, 1991, Records, pp. 205-206. Appointed by the Central Bank as TMBC's Deputy Receiver on May 26, 1987; TSN dated August 17, 1990; TSN dated September 24, 1990. Minutes dated September 24, 1990 rendered by RTC Makati, Branch 64, Records, p. 143. Order dated September 24, 1990 rendered by RTC Makati, Branch 64, Records, pp. 145-146. Order rendered by RTC Makati, Branch 64, Records, pp. 147-149. Order rendered by RTC Makati, Branch 64, Records, p. 150.

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commanding the Deputy Sheriff, Mr. Reynaldo Pascual, to attach the property of Defendants-Appellants, which included Mr. Silverio's Manila Golf and Country Club, Inc., membership proprietary shares (MGCC Shares).18 The pre-trial was scheduled on December 4, 1990 and was terminated on August 4, 1992. As per RTC Order,19 the case was set for trial on October 7 and 13, 1992. The RTC in a February 3, 1993 Order,20 directed PlaintiffAppellee to submit its formal offer of evidence which they complied with on February 10, 1993.21 Considering that no objection was made by Defendants-Appellants during the trial on May 10, 1993,22 the RTC issued its May 13, 1993 Order,23 admitting Plaintiff-Appellee's exhibits and setting the initial presentation of defense evidence on July 1, 1993. Plaintiff-Appellee's counsel, Atty. Tan and Defendants-Appellants counsel, Atty. Villacorta, both personally appeared.24 Consequently, the hearing was reset to August 30, 199325 and counsels for both parties were again present.26 The trial was reset for the last time on October 7, 1993,27 but this time, Defendants-Appellants counsel, failed to appear. And, as a result, upon Plaintiff-Appellee's motion, the RTC deemed Defendants-Appellants to have waived their right to present evidence.28 Meanwhile, on February 11, 1993, Appellant-Intervenor, Mr. Esteban Yau filed with the RTC a Motion for Leave to Intervene and to
18 19 20 21 22 23 24 25 26 27 28 Sheriff's Report dated October 29, 1990 by Reynaldo A. Pascual, Records, pp. 174-175. Order rendered by RTC Makati, Branch 64, Records, p. 224. Order rendered by RTC Makati, Branch 64, Records, p. 234. Formal Offer of Evidence by TMBC, Records, pp. 235-240. Minutes dated May 10, 1993 by RTC Makati, Branch 64, Records, p. 288. Order by RTC Makati, Branch 64, Records, p. 290. Minutes dated July 1, 1993 by RTC Makati, Branch 64, Records, p. 291. Order dated July 1, 1993 rendered by RTC Makati, Branch 64, Records, p. 292. Minutes dated August 30, 1993 by RTC Makati, Branch 64, Records, p. 327. Order dated August 30, 1993 rendered by RTC Makati, Branch 64, Records, p. 328. Order August 7, 1993 rendered by RTC Makati, Branch 64, Records, p. 374.

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Admit Attached Complaint-in-Intervention29 dated February 10, 1993. Appellant-Intervenor claimed to be Mr. Silverio's judgment creditor by virtue of a March 27, 1991 RTC Cebu, Branch 6 decision,30 which included Mr. Silverio as one of the partydefendants. After the decision in the Cebu case became final and executory, a Writ of Execution was issued on September 17, 1992 but the defendants therein, including Mr. Silverio, failed to pay the judgment. The only asset left was Mr. Silverio's MGCC Shares. Accordingly, Special Sheriff Ruben S. Nequinto levied upon the MGCC Shares on December 7, 1992 and sold the same for the sum of P2,000,000.00 in a public auction on December 29, 1992. Appellant-Intervenor emerged as the highest bidder. Nonetheless, it was only after the purchase that Appellant-Intervenor learned, for the first time, that the MGCC Shares were previously attached by TMBC per the RTC's September 27, 1990 Order. In his Complaint-in-Intervention, Appellant-Intervenor claimed that the writ of attachment was improperly and irregularly issued. He argued that the RTC Makati, Branch 144's finding of fraud in its February 26, 1986 decision in Producers Bank of the Philippines vs. Delta Motors Corporation against Mr. Silverio cannot be the RTC Makati, Branch 64's basis in granting TMBC's application for writ of attachment in this case. On July 1, 1993, the RTC issued an Order,31 granting the Motion for Leave to Intervene and to Admit Attached Complaint-inIntervention. This was upheld by the Court of Appeals in its January 9, 1997 decision32 in CA-G.R. SP No. 32405 and was later
29 Motion for Leave to Intervene and To Admit Attached Complaint-in-Intervention by Esteban Yau, Records, pp. 242-245; 255-258. 30 Esteban Yau v. Philippine Underwriters Finance Corporation, et. al., Civil Case CEB-2058 dated March 27, 1991 rendered by RTC Cebu, Branch 6, Records, p. 246-253. 31 Order dated July 1, 1993, rendered by RTC Makati, Branch 64, Records, p. 292. 32 Decision (CA-G.R. SP No. 32405) dated January 9, 1997 promulgated by the Court of Appeals penned by Justice Fermin A. Martin, Jr., Records, pp. 399-405.

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on affirmed by the Supreme Court in its July 11, 2002 decision33 in G.R. Nos. 126731; 128623 which eventually became final and executory.34 After the lapse of 10 years, the RTC Makati, Branch 64, in its June 3, 2003 Order,35 ordered the resumption of the proceedings in the main case and set the hearing on June 25, 2003. On the said hearing, the RTC gave Defendants-Appellants 15 days, from receipt of its Order,36 within which to comment on PlaintiffAppellee's February 10, 1993 formal offer of exhibits. The RTC sent a copy of the Order to Defendants-Appellants and their counsel, Atty. Villacorta.37 However, Defendants-Appellants did not file any comment despite the opportunity given them.38 Likewise, the presentation of Defendants-Appellants' evidence was set on August 13, 2003, but like their counsel Atty. Villacorta, Defendants-Appellants also failed to appear.39 Consequently, in its August 13, 2003 Order,40 the RTC considered Defendants-Appellants' right to present evidence as having been waived and the case was submitted for decision on the basis of Plaintiff-Appellee's evidence. A copy of the said Order was separately sent to Defendants-Appellants at EISC and to their counsel, Atty. Villacorta at his last known address but all were returned unserved. But Mr. Silverio was duly served as evidenced by the August 26 2003 Return Receipt.41

33 Decision (G.R. No. 126731; GR. No. 128623) dated July 11, 2002 promulgated by the Supreme Court penned by Justice Austria-Martinez, Records, pp. 449-460. 34 Entry of Judgment for GR. No. 128623 dated August 9, 2002, Records, p. 520; Entry of Judgment for G.R. No. 126731 dated September 20, 2002, Records, p. 521. 35 Order dated June 3, 2003 rendered by RTC Makati, Branch 64, Records, p. 523. 36 Order dated June 25, 2003 rendered by RTC Makati, Branch 64, Records, p. 524. 37 Return Receipt, Records, p. 526 [Dorsal part.] 38 Order dated August 8, 2003 rendered by RTC Makati, Branch 64, Records, p. 540. 39 Minutes dated August 13, 2003 rendered by RTC Makati, Branch 64, Records, p. 541. 40 Order dated August 13, 2003 rendered by RTC Makati, Branch 64, Records, p. 544. 41 Return Receipt, Records, p. 544 [Dorsal part.]

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On June 24, 2005, the RTC rendered a decision adverse to Defendants-Appellants, the dispositive portion of which reads:
WHEREFORE, in view of all the foregoing, judgment is rendered as follows: 1. As regard the Complaint, defendant Environmental Integrated Services Corporation (EISC) and Ricardo C. Silverio. Sr. are ordered to pay jointly and solidarily a. P 4, 800,000.00, the principal amount of the loan, plus fixed interest of 23% per annum from December 29, 1982 to December 29, 1985; and 12% legal interest per annum on the amount due from December 29, 1985 until the amount is fully paid; b. To pay attorney's fees computed at 25% of the principal amount of loan; and c. Litigation expenses determined at P200,000.00. 2. As regard the Complaint in Intervention, the same is DISMISSED, without cost. SO ORDERED.42

On July 12, 2005, Mr. Silverio, hired Atty. Rommel J. De Leon of the Chuidan Law Office, as his personal counsel43 as the law firm of Salva, Villanueva and Associates was retained to be the counsel of EISC only.44 On July 20, 2005, Defendants-Appellants, through their new counsel, filed a Motion for Reconsideration45 of the adverse decision.
42 43 44 45 Supra at Note 2. (Decision of RTC Makati, Branch 64). Entry of Appearance dated July 12, 2005, Records, pp. 277-278. Entry of Appearance dated July 12, 2005, Records, pp. 277-278. Motion for Reconsideration dated July 19, 2005, filed by EISC and Mr. Silverio, Sr., Records, pp. 280-291.

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Nonetheless, on October 14, 2005, the RTC issued an Order46 denying Defendants-Appellants Motion for Reconsideration. Aggrieved by the RTC's June 24, 2005 Decision and its October 14, 2005 Order, Defendants-Appellants interposed this Appeal47 raising the following assignment of errors:
FIRST ASSIGNMENT OF ERROR THE TRIAL COURT ERRED WHEN IT RULED THAT DEFENDANT-APPELLANT SILVERIO WAS BOUND BY THE ACTS AND/OR MISTAKES OF HIS COUNSEL DESPITE THE FACT THAT HIS FORMER COUNSEL WAS GROSSLY AND INEXCUSABLY NEGLIGENT IN FAILING TO APPEAR AT THE SCHEDULED HEARING FOR THE PRESENTATION OF THE DEFENDANTS-APPELLANTS' EVIDENCEIN-CHIEF, AND FOR WHICH REASON, DEFENDANTS-APPELLANTS' WERE CONSIDERED TO HAVE WAIVED THEIR RIGHT TO PRESENT EVIDENCE IN THEIR BEHALF.

SECOND ASSIGNMENT OF ERROR THE TRIAL COURT ERRED WHEN IT RULED THAT DEFENDANTS-APPELLANTS ARE CONSIDERED TO HAVE ACQUIESCED TO THE ORDER DATED 13 AUGUST 2003 DESPITE THE FACT THAT DEFENDANT-APPELLANT SILVERIO FAILED TO RECEIVE ACTUAL NOTICE OF THE SAID ORDER.

46 Order dated October 14, 2005 rendered by RTC Makati, Branch 64, Records, p. 312. 47 Brief (For the Defendants-Appellants Environment Integrated Services Corporation and Ricardo C. Silverio. Sr.) dated October 30, 2007, Rollo, pp. 116-148.

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THIRD ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED WHEN IT HASTILY DECLARED THE DEFENDANTS-APPELLANTS TO HAVE WAIVED THEIR RIGHT TO PRESENT EVIDENCE AT THE FIRST INSTANCE, WITHOUT GIVING THEM, AT THE VERY LEAST AND IN THE INTEREST OF JUSTICE, ANOTHER OPPURTUNITY TO PRESENT EVIDENCE IN THEIR BEHALF THEREBY DEPRIVING THEM OF THEIR RIGHT TO A DAY IN COURT.

FOURTH ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN RENDERING THE DECISION DATED 24 JUNE 2005 IN FAVOR OF THE PLAINTIFF-APPELLEE DESPITE THE FACT THAT DEFENDANTS-APPELLANTS WERE UNJUSTLY DEPRIVED OF THEIR FUNDAMENTAL RIGHT TO PRESENT EVIDENCE IN THEIR BEHALF WHICH DECISION IS IN GRAVE VIOLATION OF DUE PROCESS.

FIFTH ASSIGNMENT OF ERROR THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW THE DEFENDANTSAPPELLANTS TO PRESENT THEIR COUNTEREVIDENCE IN THE INSTANT CASE CONTRARY TO THE MANDATE OF SUBSTANTIAL JUSTICE.48

For his part, Intervenor-Appellant also filed an Appeal49 to RTC's June 24, 2005 Decision raising the following errors:
48 Rollo, pp. 123-124. 49 Brief (For Intervenor-Appellant Esteban Yau), dated September 20, 2007, Rollo, pp. 66-98.

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FIRST ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN NOT DECLARING THAT THE WRIT OF PRELIMINARY ATTACHMENT DATED 17 OCTOBER 1990 ISSUED BY THE PREVIOUS PRESIDING JUDGE AGAINST DEFENDANT-APPELLANT RICARDO C. SILVERIO, SR. WAS IMPROPERLY OR IRREGULARLY ISSUED, HENCE NULL AND VOID AND OF NO EFFECT WHATSOEVER. SECOND ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN NOT SETTING ASIDE OR DISCHARGING THE ATTACHMENT OF THE MANILA GOLF AND COUNTRY CLUB SHARE OF DEFENDANTAPPELLANT RICARDO SILVERIO, SR., BY VIRTUE OF THE WRIT OF PRELIMINARY ATTACHMENT DATED 17 OCTOBER 1990 WHICH WAS IMPROPERLY OR 50 IRREGULARY ISSUED.

Both appeals are bereft of merit. On Defendants-Appellants Appeal Cutting through the foliage of errors assigned, the issue boils down to whether or not Civil Case No. 90-271 should be reopened to allow Defendants-Appellants to present their counter evidence in the interest of justice and fairness. We rule in the negative. Defendants-Appellants maintain that the gross and inexcusable negligence of their former counsels (partners in Salva, Villanueva and Associates firm) resulting to their failure to present their evidence-in-chief cannot bind them. They argue that their
50 Rollo, pp. 8-9.

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former counsel betrayed them to a point where they were not informed about the status of their case. They even assert that their former counsel's negligence was intentionally done. These empty claims do not persuade. The general rule is that a client is bound by the counsels acts, including even mistakes in the realm of procedural technique.51 The rationale for the rule is that a counsel, once retained, holds the implied authority to do all acts necessary or, at least, incidental to the prosecution and management of the suit in behalf of his client, such that any act or omission by counsel within the scope of the authority is regarded, in the eyes of the law, as the act or omission of the client himself.52 A recognized exception to the rule is when the reckless or gross negligence of the counsel deprives the client of due process of law.53 For the exception to apply, however, the gross negligence should not be accompanied by the clients own negligence or malice, considering that the client has the duty to be vigilant in respect of his interests by keeping himself up-to-date on the status of the case.54 Failing in this duty, the client should suffer whatever adverse judgment is rendered against him.55 In the present case, it is noticeable that from the time the Plaintiff-Appellee complied with the RTC's directive to submit its formal offer of evidence on February 3, 1993 up to the time the RTC reset the trial of the case on October 7, 1993, DefendantsAppellants' counsel, Atty. Villacorta, did not present their counterevidence, notwithstanding the fact that he was present during three trial dates: February 10, 1993; July 1, 1993; and August 30, 1993. As early as that stage, Defendants-Appellants should have been alerted about their counsel's negligent handling of their case. They
51 52 53 54 55 Gregorio Dimarucot y Garcia vs. People of the Philippines, G.R. No. 183975, September 20, 2010. Peter Bejarasco, Jr. vs. People of the Philippines, G.R. No. 159781, February 2, 2011. Id. (Peter Bejarasco, Jr. Case.) Id. (Peter Bejarasco, Jr. Case.) Id. (Peter Bejarasco, Jr. Case.)

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could have prompted their lawyer to proffer their evidence, assuming they had any. Unfortunately, they did not. In fact, ten years later, after the RTC resumed the proceedings on June 25, 2003, Defendants-Appellants and their counsel displayed, once again, their propensity to ignore court orders by failing to comply with the 15-day period within which to comment on PlaintiffAppellee's February 10, 1993 formal offer of exhibits. Worse, they were not present during the August 13, 2003 trial when they were scheduled to present their evidence. Evidently, Defendants-Appellants had a choice of whether to continue the services of Salva and Associates or terminate their services. They could also have requested Atty. Villacorta or Atty. Salva (lawyers of Salva and Associates) to file the required comment to Plaintiff-Appellee's formal offer of exhibits and their evidence before consenting to their withdrawal from the case. But they did neither of these. Their own indifference and lack of sufficient diligence are the main culprits for the situation they now find themselves in. It would not be fair to pass on the bad consequences of their choices solely to their former counsels' negligence. Of course, We are not unmindful of Mr. Silverio's resolve in contracting the services of Chuidian Law Office ostensibly as his exclusive counsel. The Entry of Appearance of the Chuidian Law Office should not give rise to the presumption that Salva and Associates withdrew its appearance as counsel in the absence of a formal withdrawal of appearance approved by the court. At most, the Chuidian Law Office should only be treated as the collaborating counsel for Defendants-Appellants despite its entry of appearance. Assuming arguendo that Defendants-Appellants withdrew the services of Salva and Associates, this alone cannot disassociate them from the law firm's negligence, simply because, prior to their withdrawal, an attorney-client relationship between them still

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existed. More importantly, the purported substitution of counsel was only effected when there was already an adverse decision and the negligence of both Defendants-Appellants and their previous counsel was already manifested earlier on. Defendants-Appellants cannot attribute the failure to present their evidence to the fault entirely of their former counsel. We cannot turn a blind eye to their own negligence and apathy. A litigant bears the responsibility to monitor the status of his case, for no prudent party leaves the fate of his case entirely in the hands of his lawyer.56 Defendants-Appellants should not expect that all they need to do is sit back, relax and await the outcome of their case.57 Here, both Defendants-Appellants and their former counsel offered no justification why no comment to Plaintiff-Appellee's formal offer of exhibits has ever been filed. Defendant-Appellant Silverio's allegation that he never received the August 13, 2003 Order is a porous defense which will not justify their failure to file the said comment or their counter evidence. On the contrary, the records show that prior to the August 13, 2003 Order, the RTC has been very accommodating in allowing the Defendants-Appellants to present their evidence. Besides, the issue of non-receipt of the August 13, 2003 Order was raised here for the first time. It is a fundamental rule that questions raised on appeal must be within the issues framed by the parties and, consequently, issues not raised in the trial court cannot be raised for the first time on appeal because it would be offensive to the basic rule of fair play and justice, and would be violative of the constitutional right to due process of the other party.58
56 Supra at Note 54. (Peter Bejarasco, Jr. Case.) 57 Balgami, et. al. vs. CA, et. al., G.R. No. 131287, December 9, 2004. 58 Heirs of Lorenzo and Carmen Vidad and Agvid Construction Co., Inc. vs. Land Bank of the Philippines, G.R. No. 166461, April 30, 2010.

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Records reveal that defendants-Appellants knew all along that they were required to submit their evidence as early as the 1990's, right after Petitioner-Appellee offered its exhibits. They cannot hide behind the assertion that their former counsel did not inform them of the status of their case. For Defendants-Appellants to feign and insist upon a lack of awareness of the progress of their case for more than 15 years from the time they were impleaded is to unmask a penchant for the ludicrous. Irrefragably, DefendantsAppellants manifestly failed to display in the proceedings below the expected degree of concern or attention to their case. Involving as it did the attachment of properties, no less than staunch vigilance in safeguarding their rights were expected from the them.59 It bears stressing that it is the clients duty to be in contact with his lawyer from time to time in order to be informed of the progress and developments of his case.60 To merely rely on the bare reassurances of a lawyer that everything is being taken care of is not enough.61 Verily, diligence is required not only from lawyers but also from their clients.62 Defendants-Appellants likewise contend that the RTC decision was rendered with grave denial of due process since they were not given the chance to present evidence on their behalf. The contention deserves scant consideration. Jurisprudence teems with pronouncements that the essence of due process is to be afforded a reasonable opportunity to be heard and to submit any evidence in support of ones claim or defense.63 Where the opportunity to be heard, either through verbal arguments or pleadings, is accorded and the party can
59 60 61 62 63 Tan vs. Court of Appeals, G.R. No. 157194, June 20, 2006. Supra at Note 54. (Peter Bejarasco, Jr. Case.) Id. (Peter Bejarasco, Jr. Case.) Garcia vs. People, G.R. No. 183975, September 20, 2010. Salvador D. Violago, Sr. vs. Commission on Elections and Joan V. Alarilla, G. R. No. 194143, October 4, 2011.

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present its side or defend its interest in due course, there is no denial of due process.64 The records splayed before Us unveil the fact that Defendants-Appellants had been given numerous notices to attend all the hearings conducted by the RTC, not only to be merely present therein but also an opportunity to present their evidence. To be sure, the following are borne by the Records: On May 10, 1993 and August 30, 1993, DefendantsAppellants counsel was present, yet he did not make any objection to Plaintiff-Appellee's formal offer of evidence; worse, they never filed a comment or any counter-evidence. When the case was reset on October 7, 1993, Defendants-Appellants and their counsel failed to appear which resulted to a waiver of their right to present evidence. When the case resumed on June 25, 2003, the RTC explicitly issued an Order directing Defendants-Appellants to submit a comment on Plaintiff-Appellee's February 10, 1993 formal offer of exhibits, yet they ignored the same. And, instead of appearing in court on August 13, 2003, for the scheduled presentation of their evidence, neither Defendants-Appellants nor their counsel appeared without any reason at all. Needless to say, Defendants-Appellants actively participated in the proceedings. They were given ample opportunity to proffer their evidence, but their languid response got the better of them. Indeed, from lethargy is misfortune born.65 Where a party was afforded an opportunity to participate in the proceedings but failed to do so, they cannot complain of deprivation of due process.66 So it is in this case.
64 Borres, et. al. vs. Abela, et. al., G.R. No. 131023, July 17, 2007. 65 Elpidio S. Uy vs. First Metro Integrated Steel Corp., et. al., G.R. No. 167245, September 27, 2006. 66 Id. (Borre Case.)

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Assuming for argument's sake that they were not notified by the RTC as to the scheduled presentation of their evidence, still, such defect was cured when Defendants-Appellants already filed their Motion for Reconsideration. It is well-settled that any defect in the observance of due process requirements is cured by the filing of a motion for reconsideration.67 Denial of due process cannot be successfully invoked by a party who has had the opportunity to be heard on his motion for reconsideration.68 Undoubtedly, the requirement of the law was afforded to Defendants-Appellants. It is well to remind Defendants-Appellants that blunders and mistakes in the conduct of the proceedings in the trial court as a result of the ignorance, inexperience or incompetence of counsel do not qualify as a ground for reopening a case.69 To follow a contrary rule and allow a party to disown his counsel's conduct would render proceedings indefinite, tentative, and subject to reopening by the mere subterfuge of replacing the counsel.70 If such were to be admitted as valid reasons for re-opening cases, there would never be an end to litigation so long as a new counsel could be employed to allege and show that the prior counsel had not been sufficiently diligent, experienced or learned.71 This will put a premium on the willful and intentional commission of errors by counsel, with a view to securing new trials in the event of an adverse decision, as in the instant case. What the aggrieved litigant should do is seek administrative sanctions against the erring counsel and not ask for the reversal of the court's ruling.72 On Defendant-Intervenor's Appeal
67 68 69 70 NASECORE, et. al. vs. ERC and MERALCO, G.R. No. 190795, July 6, 2011. A. Z. Arnaiz Realty, Inc. vs. Office of the President, et. al. G.R. No. 170623, July 7, 2010. Padilla-Rumbaua vs. Rumbaua, G.R. No. 166738, August 14, 2009. Atlas Consolidated Mining and Development Corporation vs. Commissioner of Internal Revenue, G.R. Nos. 141104 & 148763, June 8, 2007. 71 Id. (Padilla-Rumbaua Case.) 72 Atlas Consolidated Mining and Development Corporation vs. Commissioner of Internal Revenue, G.R. Nos. 141104 & 148763, June 8, 2007.

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At this juncture, We emphasized that although PlaintiffAppellee based its Application for Preliminary Attachment on Rule 57 of the 1989 Rules of Court, the present Rules should now be applied since procedural laws do not come within the legal conception of a retroactive law, or the general rule against the retroactive operation of statutes.73 They are construed to be applicable to actions pending and undetermined at the time of their passage, and are deemed retroactive in that sense and to that extent.74 Rule 57 of the 1997 Rules of Civil Procedure is indisputably procedural, specifying in clear terms the manner or mode of effecting an attachment and, therefore, can be made applicable to actions pending upon its effectivity, such as the present case, without danger of violating anyone else's rights.75 Appellant-intervenor claims that the writ of attachment against Defendant-Appellant Silverio's MGCC shares was improperly or irregularly issued. He insists that TMBC's affidavit in support of its application against Defendant-Appellant Silverio was made by Mr. Cavero a person who does not know the facts regarding the loan application between Defendant-Appellant EISC and Plaintiff-Appellee TMBC. He maintains that TMBC failed to prove that Defendant-Appellant Silverio committed fraud. Defendant-Intervenor is confused. First, the facts show that Mr. Cavero was appointed as a receiver for Defendant-Appellee TMBC. And, among his powers as a receiver is his access76 to the corporation's records. Naturally,
73 Manaloto, et. al. vs. Veloso III, G.R. No. 171365, October 6, 2010. 74 Divinagracia vs. Ruiz, et. al., G.R. No. 172508, January 12, 2011. 75 Id. (Manaloto Case.) 76 Section 31.Powers, Duties and Responsibilities of the Rehabilitation Receiver. (a) To verify the accuracy of the factual allegations in the petition and its annexes; (b) To verify and correct, if necessary, the inventory of all of the assets of the debtor, and their valuation; (c) To verify and correct, if necessary, the schedule of debts and liabilities of the debtor; (d) To evaluate the validity, genuineness and true amount of all the claims against the debtor; (e) To take possession, custody and control, and to preserve the value of all the property of the debtor;

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even if he was not physically present at the time the loan was approved, company records were readily at hand upon which he based his Affidavit of Merit for the application of DefendantAppellee TMBC's writ of attachment. What is imperative is that the affidavit sufficiently complied with the requisites laid down in Section 3, Rule 57.77 Moreover, We agree with Defendant-Appellee TMBC's postulate, that:
xxx the affidavit of Cavero satisfies the requirement of Rule 57 as he personally knows the facts of defendantappellants' loan account with TMBC as its Deputy Receiver. There is nothing spectacular about Cavero's acquisition of personal knowledge regarding defendant-appellants' loan account ...as it his duty to know the incidents and matters affecting said loan account. In fact, he ought to know and be familiar with the same. xxx Cavero's statement actually bolsters the fact that he has personal knowledge of the circumstances surrounding defendant-appellants loan account...because he has studied the records of the same as TMBC's Deputy Receiver. xxx the Trial Court's pronouncement as to the fact of Silverio's properties having been attached in another case is only one of many findings cited by the Trial Court. It is not the sole basis of the Trial Court in granting a writ xxx.78
(f) To sue and recover, with the approval of the court, all amounts owed to, and all properties pertaining to the debtor; (g) To have access to all information necessary, proper or relevant to the operations and business of the debtor and for its rehabilitation; (h) To sue and recover, with the. approval of the court, all property or money of the debtor paid, transferred or disbursed in fraud of the debtor or its creditors, or which constitute undue preference of creditor/s; (i) xxx; R. A. No. 10142, An Act Providing for the Rehabilitation or Liquidation of Financially Distressed Enterprises and Individuals; August 16, 2010 (Philippine Star). 77 Sec. 3. Affidavit and bond required. An order of attachment shall be granted only when it appears by the affidavit of the applicant, or of some other person who personally knows the facts, that a sufficient cause of action exists, that the case is one of those mentioned in Section 1 hereof, that there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. xxx 78 Brief for the Plaintiff-Appellee TMBC (Re: Intervenor's Brief), November 9, 2007, Records, pp. 165-182.

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Second, a cursory evaluation of Plaintiff-Appellee's allegations in support of their prayer for a writ of preliminary attachment show that Defendants-Appellants in contracting the debt or incurring the obligation intended to defraud the bank. Thus:
6.2. This is an action against parties who are guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought inasmuch as the defendants from the inception of the loan agreement, entered into with the plaintiff, really had no intention of complying with their obligation. This is shown by the fact that to date, despite due demands both defendants had not paid any single centavo to liquidate their obligation. 6.3. In defendant EISC's Balance Sheet as of 30 September 1982, it had Transportation Equipment worth P15, 450, 923.13 while the latest property check conducted by plaintiff TMBC failed to reveal remaining properties owned by defendant EISC. Given these circumstances, the inescapable conclusion is that defendant EISC has removed or disposed of its properties with the intention of defrauding its creditors. 6.4. Furthermore, defendant Ricardo C. Silverio's properties have already been attached pursuant to a Writ of Attachment issued in the case of Producers Bank of the Philippines v. Delta Motors Corporation,79 Civil Case No. 7368 lodged before the Regional Trial Court, Makati, Branch CXLIV (144) after said Trial Court has found defendant Ricardo C. Silverio guilty of fraud. 6.7. There is no sufficient security for the claim sought to be enforced in the present action.80 xxx

79 TSN dated September 24, 1990, p. 27. 80 Supra at Note 5. (Complaint.)

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(c) To further entice the Manila Banking Corporation into approving the loan, Mr. Ricardo C. Silverio, a principal stockholder of Environmental Integrated Service Corporation executed a Continuing Surety Agreement dated 04 January 1983. However, Mr. Ricardo C. Silverio likewise never had any intention of performing his obligation under said Continuing Surety Agreement as in fact he has not performed said obligation despite demand made on him.81

For a writ of attachment to issue under Section 1 (d)82 and (e)83 of Rule 57, the applicant must sufficiently show the factual circumstances of the alleged fraud. Fraud is described as embracing all multifarious means which human ingenuity can device, and which are resorted to by one individual to secure an advantage over another by false suggestions or by suppression of truth and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated.84 Fraudulent, on the other hand, connotes intentionally wrongful, dishonest, or unfair.85 And, although fraud cannot be presumed, it need not be proved by direct evidence and it can well be inferred from attendant circumstances.86 In the case at bar, the Plaintiff-Appellee has, to Us, based, among others, on the quoted allegations, sufficiently demonstrated the commission of fraud committed by Defendants-Appellants.

81 Supra at Note 9. (Affidavit.) 82 (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; xxx 83 (e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; xxx 84 Republic of the Philippines vs Lim, Sr., et. al., G.R. No. 164800, July 22, 2009. 85 Id. (Lim, Sr. Case.) 86 Id. (Lim, Sr. Case.)

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If, indeed, Defendants-Appellants had the intention of honoring their obligation with Plaintiff-Appellee, they should have revealed the true status of their remaining properties rather than misrepresenting the same, considering that this was crucial in the granting of the loan.87 Furthermore, the allegations of fraud in both the Complaint and the Mr. Cavero's Affidavit of Merit, were attested to during the trial by the appointed deputy receiver, Mr. De Guzman, the deputy receiver at the time the application was being heard by the RTC. His testimony was never challenged by Defendants-Appellants. Evidently, immediately after the RTC's issuance of the October 16, 1990 Order of Writ of Preliminary Attachment, Defendants-Appellants, particularly Mr. Silverio, dubbed as the party whose property has been attached, no longer questioned the propriety and regularity of the attachment. He kept silent and did not exercise any of the remedies available to a defendant whose property or asset has been attached. Given the lack of any evidence to prove that the RTC committed any error in issuing the assailed Order of Writ of Preliminary Attachment, We cannot submit to DefendantIntervenor's bare claims. It is a legal presumption, based on wisdom and experience, that official duty has been regularly performed; that the proceedings of a judicial tribunal are regular and valid, and that judicial acts and duties, such as the issuance of court orders, have been and will be duly and properly performed. 88 The burden of proving the irregularity in official conduct, if any, is on the part of Defendant-Intervenor who, in this case, clearly failed to discharge the same. WHEREFORE, both appeals are DENIED. The June 24, 2005 Decision and October 14, 2005 Order of the Regional Trial Court
87 Supra at Note 88. (Brief for the Plaintiff-Appellee TMBC Re: Intervenor's Brief.) 88 Cada vs. Time Saver Laundry/Leslie Perez, G.R. No. 181480, January 30, 2009.

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(RTC) of Makati City, Branch 64, in Civil Case No. 90-271, are AFFIRMED in toto. SO ORDERED.

NOEL G. TIJAM Associate Justice

WE CONCUR:

ROMEO F. BARZA Associate Justice

EDWIN D. SORONGON Associate Justice

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the court.

NOEL G. TIJAM
Associate Justice Chairperson, Ninth Division

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