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RIZAL COMMERCIAL BANKING CORPORATION,
Petitioner, - versus - MARCOPPER MINING CORPORATION, , Respondent. |
G.R. No. 170738
Present: Quisumbing, J., Chairperson, CARPIO,* CHICO-NAZARIO,** BRION, and ABAD, JJ. Promulgated: October 30, 2009 |
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RESOLUTION
QUISUMBING, J.:
For
resolution is the Motion for Reconsideration[1] filed by
respondent Marcopper Mining Corporation (Marcopper) seeking to set aside the
Court’s Decision[2]
dated September 12, 2008 in favor of petitioner Rizal Commercial Banking
Corporation (RCBC). The dispositive
portion of the Decision reads:
WHEREFORE,
the petition is GRANTED. The
assailed Decision dated June 6, 2005 and the Resolution dated December 8, 2005
of the Court of Appeals in CA-G.R. CV No. 77594 are REVERSED and SET
ASIDE. Marcopper is directed to pay
RCBC the following amounts expressly stipulated in the Non-Negotiable Promissory
Note Nos. 21-3697 and 21-3797:
1.
US$5,425,485.00
as the total principal amount due under Non-Negotiable Promissory Note Nos.
21-3697 and 21-3797, including the interest due on US$2,698,845.00 under
Non-Negotiable Promissory Note No. 21-3697 at the rate of 9% per annum until
fully paid;
2.
Penalty
equivalent to 36% per annum of the amount due and unpaid under Non-Negotiable
Promissory Note Nos. 21-3697 and 21-3797 until fully paid; and
3.
Attorney’s fees
equivalent to 20% of the total amount due.
RCBC’s claims for moral and exemplary damages are
denied. It may, however, exercise its
rights, in accordance with law, to foreclose on the properties covered. No pronouncement as to costs.
SO ORDERED.[3]
The antecedent facts as summarized in
the decision sought to be reconsidered, are as follows:
To finance its acquisition of 12 Rig Haul Trucks and
one Demag Hydraulic Excavator Shovel, Marcopper obtained a loan from RCBC in
the amount of US$13.7 Million. As
security for the loan, Marcopper executed in favor of RCBC a Deed of Chattel
Mortgage dated April 23, 1996 of the 12 Rig Haul Trucks and one Demag Hydraulic
Excavator Shovel and a Deed of Pledge dated August 29, 1996 covering shares of
stock of the Baguio Country Club, Canlubang Golf and Country Club, Philippine
Columbian Association, and Puerto Azul Beach and Country Club. Later, Marcopper likewise delivered to RCBC
an additional Deed of Pledge dated
Sometime in 1996, a restructuring of the loan was
agreed upon by RCBC and Marcopper. In
view of its inability to pay the loan, Marcopper, in a letter dated July 1,
1997 proposed two options to RCBC: (1) to initiate foreclosure of the mortgaged
assets and treat the deficiency as an unsecured creditor’s claim against
Marcopper’s remaining assets; or (2) to accept the assignment of a Forbes Park property
owned by Marcopper comprising 2,437 square meters and covered by TCT No. 321269
(Forbes Park property) as partial payment of the loan and restructure the
payment of the balance over a period of two years. x x x x.[4]
On
In a letter[5] dated
x x x x
1) The principal amount was to be revised, from the original
principal of $13.7 million to $14.327 million, which includes interest that has
been capitalized;
2.)
Implementation of
the assignment of the P235 million, equivalent to about $8,901,515;
3.)
Payment of the
amount of $2,698,485 over a period of one (1) year payable quarterly plus
interest; and
4.)
Payment of the
balance of $2,727,000 over a period of two (2) years, payable quarterly,
without interest.
x x x x
RCBC Director/Senior Vice-President Susanne Y. Santos and
Senior Vice President Filadelfo S. Rojas, Jr. signed their conformity to the
above repayment plan.
On July 31, 1997 Marcopper transmitted several documents to be signed by
RCBC, among which, were the Deed of Assignment of its Forbes Park property and
the Deed of Release from Mortgage of six (6) units Rig Trucks and one (1) unit
Demag Shovel. RCBC signed the Deed of
Assignment of the
On
On
MARCOPPER MINING CORP.
6th Floor, V. Madrigal Bldg.
Attention:
MR. NICANOR L. ESCALANTE Treasurer
Gentlemen:
As
you are aware, we have effected the transfer of ownership of the Forbes
property which you used to partially settle your past due obligations with the
bank. You have previously requested the
release of six (6) Units Rig trucks and one (1) Demag Shovel. However, as I have previously informed you,
we first need to work on some details in relation to the dacion. We still need to get approval for your request
thus no commitment can be made at this time.
Very
truly yours,
(Sgd.)
MA.
FELISA R. BANZON
Vice-President[6]
On
On
On
The Regional
Trial Court (RTC) rendered a decision in favor of Marcopper. On appeal, the Court of Appeals affirmed with
modification the decision of the RTC. From the decision of the Court of
Appeals, petitioner RCBC filed a petition for review on certiorari. This Court found the petition to be impressed
with merit, and reversed the decision of the appellate court. We ruled in this wise:
A review of the written exchanges between the parties
shows no written agreement was ever executed by RCBC and Marcopper for RCBC to
execute a partial release of mortgage and pledge upon assignment to it of the
Even the letter dated
The existence of the alleged condition asserted by
Marcopper was therefore to be gleaned primarily from the testimonies of its
witnesses who asserted that Marcopper and RCBC had agreed on
Unfazed,
Marcopper filed the instant motion for reconsideration alleging that:
I.
The
decision reversed and set aside the factual findings of the trial court and
appellate [court] primarily on the basis of a deed of pledge allegedly executed
on
II.
The
deed of chattel mortgage executed on the mining trucks and demag shovel was for
another transaction, the opening by RCBC of a foreign standby letter of credit
in favor of the U.S. Eximbank to guarantee a loan that did not push through;[10]
III.
The
1 July 1997 letter and 8 July 1997 agreement involved the restructuring of the
original bridge loan, which led to the tender of MMC’s North Forbes Park
property in the amount of $8.9 Million.[11]
Respondent
Marcopper’s grounds for reconsideration lack merit. Noticeably, the issues raised by Marcopper in
its motion for reconsideration are new matters which have not been raised in
the proceedings below and are not proper to be raised for the first time in a
motion for reconsideration.
In the main,
Marcopper contends that the Court reversed and set aside the factual findings
of the trial court and the Court of Appeals primarily on the basis of a
falsified Deed of Pledge dated
Marcopper
harps on that portion of the decision which states:
x x x x Also, on
Marcopper
assails the authenticity of the deed of pledge[13] claiming that the
signatory to the deed, Mr. Jose E. Reyes, was no longer connected with and
cannot sign on behalf of Marcopper as he had resigned in September 1996, a year
before the deed was executed. In support
thereof, Marcopper filed a Supplement to the Motion for Reconsideration[14] attaching the
certification of Mr. Reyes that he resigned from Marcopper effective sometime
in September 1996. Additionally,
Marcopper averred that the
Marcopper,
however, raised the issue of the alleged falsity of the deed of pledge only in
its motion for reconsideration of the Court’s Decision. But in its Memorandum filed before the Court,
it clearly admitted as undisputed the following facts:
x x x x
2. Marcopper
Mining Corp. through its President and Chief Executive Officer John E. Loney
and [T]reasurer Jose E. Reyes obtained a bridge loan from petitioner Rizal
Commercial Banking Corporation in the amount of US$13.7 Million to finance the
acquisition of twelve (12) Unit Rig trucks.
x x x x
5. Apprehensive
of the unsecured bridge loan extended to MMC, RCBC’s First Senior Vice
President, Mr. Filadelfo Rojas approached Mr. Teodoro Bernardino, a member of
the Board of Directors of MMC, for the possible settlement of MMC’s bridge
loan.
6. Through the
assistance of Mr. Bernardino, RCBC was able to acquire collateral for the
bridge loan it extended to MMC. A Deed
of Chattel Mortgage dated
a. 12 units –
Unit Rig Haul Trucks Model ET-3700 with Detroit Diesel 16V149TIB, 2000 HP
Engine, GTA 22 Alternators and GE 88 Wheel Motors; SN #121-126 Truck No. 8-41,
42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52 complete with accessories and front
headboard and Lip Extension;
x x x x
Another Deed of Pledge was executed covering One (1)
Philippine Columbian Association Share with Cert. No. 1486 on September 9,
1997.[15] (Emphasis
supplied.)
In fact,
we note that respondent has offered as evidence, Exh. “B”, the same deed of
pledge, as a further security to the loan agreement obtained by Marcopper from
RCBC. With respondent’s own admission in
its pleading of the execution of the subject Deed of Pledge, it cannot now be
allowed to contradict its statement and claim that the same document had been
falsified without violating the rules on fair play and due process. An admission made in the pleading cannot be
controverted by the party making such admission and is conclusive as to him,
and all proofs submitted by him contrary thereto or inconsistent therewith
should be ignored.[16] Moreover, issues and arguments which are not
adequately brought to the attention of the trial court ordinarily will not be
considered by a reviewing court as they cannot be raised for the first time on
appeal. If an issue is raised only in
the motion for reconsideration of the appellate court’s decision, it is as if
it was never raised in that court at all.[17] Respondent by its own previous admission is
bound as to the due execution of the deed of pledge.
Furthermore,
Marcopper, in a last ditch effort to reverse the Court’s Decision averred that
the deed of chattel mortgage executed on the mining trucks and Demag shovel was
for another transaction, the opening by RCBC of a foreign standby letter of
credit in favor of the U.S. Eximbank to guarantee a loan that did not push
through. Marcopper further claims that a
restructured loan or a new loan is being agreed upon for the balance of the
original bridge loan after payment of about $8.9 million through a
As aptly
pointed out by petitioner RCBC in its Comment, not once did Marcopper question
the validity of the chattel mortgage on the Rig Haul Trucks and the Demag
Shovel. But now, Marcopper is asserting
that the deed of chattel mortgage on these equipment was executed for a
consideration that did not materialize and RCBC should have released the mortgage. It is now too late for respondent to
contradict its previous judicial admissions in the prior proceedings of the
case. It would appear that in
Marcopper’s attempt to seek reversal of the Court’s Decision, it is in effect
changing its theory of the case.
Well-settled is the rule that a party is not allowed to change the
theory of the case or the cause of action on appeal.[18] We have consistently rejected the
pernicious practice of shifting to a new theory on appeal in the hope of a
favorable result.[19] Issues not raised in the court a quo
cannot be raised for the first time on appeal because to do so would be
offensive to the basic rules of justice and fair play.[20] Matters, theories or arguments not brought
out in the proceedings below will not ordinarily be considered by a reviewing
court as they cannot be raised for the first time on appeal.[21]
We have
thoroughly reviewed the records of the case and we find no reason to change our
previous ruling that there was no agreement for RCBC to execute a partial
release of mortgage and pledge. It bears
stressing that even the Court of Appeals observed that “details as to the
partial release of the collaterals were not indicated in the letters exchanged
between the parties.” Nevertheless, the
appellate court gave credence to the testimony of Marcopper’s President, Atty.
Teodulo Gabor, to show that RCBC agreed to such release through Mr. Jun
Rojas. Our own review of the testimonies
of the officers of Marcopper does not convince us that the RCBC acceded to the partial
release of mortgage and pledge. Thus, we
quote the portion of Atty. Gabor’s testimony on cross-examination:
x x x x
Q Now,
you made mention in your testimony of an agreement on the part of the defendant
to release an alleged agreement to release the pledge on the shares?
A Yes,
sir.
Q When
was this agreement made?
x x x x
A: More or
less around July 1997.
Q: Who
made this commitment to release the mortgage and the pledge on the part of
RCBC?
A: It
was RCBC according to our chairman of the board.
Q: And
in other words you don’t know who in RCBC made this supposed commitment?
A: A
certain Filadelfo Rojas something like that.
A Senior Vice President of RCBC.
Q: Were
you present when this supposed commitment was made?
A: No,
sir.
x x x x
Q: [And
you] confirm that you were not present when this supposed commitment was made?
A: Yes,
sir.
Q: And
you will admit that this supposed commitment is not in writing?
A: Yes,
sir.
x x x x
Q: And you
described this letter as the letter [(referring to the letter dated
A: No. It
was a proposal presented by Marcopper to RCBC on how our obligation with the
bank will be paid.
Q: Yes
and you will agree that this Exh. “E” does not contain the supposed commitment
to release the mortgage and the pledge?
A: Yes,
sir. This letter ha.
x x x x
Q: And you
will agree with me that again there is no mention of the supposed commitment to
release the deed of mortgage and the pledge?
A: In this
particular letter, Exh. “F” yes.
Q: There
is none?
A: None.
Q: In
fact, there is no, as you said there is no written document confirming your
testimony that there was a commitment on the part of RCBC to release the securities?
A: In the
subsequent letters sent by RCBC to Marcopper they actually agreed to release
the trucks, demag shovel, the club shares but now with new conditions.[22] (Emphasis
supplied.)
The
foregoing fail to convince us that RCBC made a commitment to release
Marcopper’s mortgage on the six Rig Trucks, the Excavator Shovel, and the
pledge on the club shares. On
cross-examination, Atty. Gabor admitted that he was not present when the
alleged commitment from RCBC on the release of the mortgage was made and he
learned of said agreement only from the report of Marcopper Treasurer Nicanor
Escalante. We also note that the July 8,
1997 letter bearing the conformity of RCBC officials refers to the repayment
scheme proposed by Marcopper; that is, the assignment to RCBC of the Forbes
Park property and the execution of two Promissory Notes. However, no mention was made of the partial
release of the mortgage. There is
nothing to indicate with certainty that the assignment of the
Yet, Joost
Pekelharing, the Chairman of Marcopper, cannot identify exactly who, among the
representatives of RCBC, made the alleged commitment to release the mortgage
and pledge. He testified in this manner:
Q: Who
from RCBC made a commitment to release the equipment?
x x x x
A: I
think, 3 or 4 people from RCBC present there.
I’m not sure who it was, but I think, the lawyer. But, I am not sure.
Q: The
lawyer?
A: I am
not sure.
Q: It
wasn’t Mr. Roxas who made a commitment?
A: I believe
he was definitely one who was very active during that time.
Q: Yes,
but it was him who made the commitment from RCBC?
A: I
really don’t recall. I only know for
sure that June Roxas was very active in the discussion. So most likely it was June Roxas.
x x x x
Q: …[A]lright,
yes. Now, as Chairman, you sign the Deed
of Assignment over the
A: Yes.
Q: Do
you recall the, more or less, …no. In this Deed of Assignment, does it contain
the supposed condition to release the equipment?
A: No.
Q: In
fact, this alleged agreement to release is not in writing?
A: Right.[23]
Notwithstanding, another witness for Marcopper, Mr. Bernardino, also claims that RCBC preferred to acquire the Forbes Park property in exchange for the release of the mortgage on the six Rig Trucks and the Demag Shovel.
The
testimonies of Marcopper’s officers do not suffice to support respondent’s
claim that RCBC agreed to partially release the mortgage on the subject
properties. While the records show that
Marcopper offered to assign its property in favor of RCBC by way of dacion,
there appears to be no arrangement for the partial release of mortgage on the
six (6) Rig Haul Trucks as a consequence of such dacion. In this case, RCBC accepted the assignment of
the
WHEREFORE, respondent’s Motion for
Reconsideration of the Court’s Decision dated
SO ORDERED.
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LEONARDO A. QUISUMBING Associate Justice |
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WE CONCUR: ANTONIO T.
CARPIO Associate Justice |
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MINITA V.
CHICO-NAZARIO Associate Justice |
ARTURO D. BRION Associate Justice |
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ROBERTO A.
ABAD Associate Justice |
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A T T E S T A T I O N
I attest that the conclusions in the
above Resolution had been reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.
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LEONARDO A. QUISUMBING
Associate Justice Chairperson |
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII
of the Constitution and the Division Chairperson’s Attestation, I certify that
the conclusions in the above Resolution had been reached in consultation before
the case was assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
* Additional member per Special Order No. 757.
** Additional member per Special Order No. 759.
[1] Rollo, pp. 321-389.
[2]
[3]
[4]
[5] Records, pp. 76-77.
[6]
[7]
[8] Rollo, pp. 316-317.
[9]
[10]
[11]
[12]
[13] Records, pp. 336-337.
[14] Rollo, pp. 397-400.
[15]
[16] Tan v. Rodil Enterprises, G.R. No.
168071,
[17] Pascual v. Ramos, G.R. No. 144712,
[18] Tokuda v. Gonzales, G.R. No. 139628,
[19] Big AA Manufacturer v. Antonio, G.R.
No. 160854,
[20] Silva v. Mationg, G.R. No. 160174,
[21] City of
[22] TSN,
[23] TSN,