CASE 2017-0032: EXPRESS PADALA (ITALIA) S.P.A. NOW BDO REMITTANCE (ITALIA) S.P.A. VS. HELEN M. OCAMPO (G.R. NO. 202505, 06 SEPT 2017, JARDELEZA, J.) (SUBJECT/S: SUBSTITUTED SERVICE OF SUMMONS) (BRIEF TITLE: EXPRESS PADALA VS OCAMPO)

 

 DISPOSITIVE:

  

“WHEREFORE, the petition is DENIED. The Decision dated January 5, 2012 and Resolution dated June 27, 2012 of the Court of Appeals in CA-G.R. SP No. 113475 are AFFIRMED insofar as there was no valid service of summons. The Decision dated September 14, 2009 of the Regional Trial Court, Branch 212, Mandaluyong City in Civil Case No. MCOS-3775 is declared VOID.

 

SO ORDERED.”

 

SUBJECTS/DOCTRINES/DIGEST:

 

WHAT HAPPENED IN THIS CASE?

 

RESPONDENT OCAMPO, A REMITTANCE PROCESSOR OF BDO REMITTANCE  WAS DISMISSED FOR MISAPPROPRIATING EURO 24,035.60 AND WAS CONVICTED OF A CRIME IN ITALY.   PETITIONER BDO REMITTANCE FILED IN MANDALUYONG RTC CASE FOR RECOGNITION OF JUDGMENT IN ITALY AND FOR CANCELLATION OF THE PASSPORT OF RESPONDENT. SUMMONS WAS SERVED BY SUBSTITUTED SERVICE BECAUSE THE PRESENT OCCUPANT OF THE LAST ADDRESS OF OCAMPO SAID THAT HE IS ONLY A CARETAKER OF THE HOUSE AND THAT OCAMPO IS NOW LIVING IN ITALY. RTC RECEIVED EVIDENCE EX PARTE AND ISSUED A DECISION AGAINST OCAMPO. C.A. REVERSED THE DECISION ON GROUND THAT THERE WAS NO VALID SERVICE OF SUMMONS. S.C. AFFIRMED.

 

WHAT IS THE GENERAL RULE IN SERVICE OF SUMMONS?

 

THAT SUMMONS MUST BE SERVED PERSONALLY ON THE DEFENDANT.

 

“Section 6, Rule 14 of the Rules of Court provides:

 

Sec. 6. Service in person on defendant. -Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him.

 

WHAT ARE THE EXCEPTIONS?

 

BY SUBSTITUTED SERVICE AND BY PUBLICATION.

 

 “For justifiable reasons, however, other modes of serving summons may be resorted to. When the defendant cannot be served personally within a reasonable time after efforts to locate him have failed, the rules allow summons to be served by substituted service. Substituted service is effected by leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein, or by leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof.21

 

When the defendant’s whereabouts are unknown, the rules allow service of summons by publication.22 As an exception to the preferred mode of service, service of summons by publication may only be resorted to when the whereabouts of the defendant are not only unknown, but cannot be ascertained by diligent inquiry. The diligence requirement means that there must be prior resort to personal service under Section 7 and substituted service under Section 8, and proof that these modes were ineffective before summons by publication may be allowed. 23 This mode also requires the plaintiff to file a written motion for leave of court to effect service of summons by publication, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application.24”

 

WHAT WAS THE RULING OF THE CA?

 

SINCE OCAMPO’S WHEREABOUTS ARE UNKNOWN AND CANNOT BE ASCERTAINED BY DILIGENT INQUIRY THE SERVICE OF SUMMONS MAY BE EFFECTED ONLY BY PUBLICATION.

 

“In the present case, the sheriff resorted to substituted service upon Ocampo through her uncle, who was the caretaker of Ocampo’s old family residence in Tanauan, Batangas. The CA held that substituted service was improperly resorted to. It found that since Ocampo’ s “whereabouts are unknown and cannot be ascertained by diligent inquiry x x x service may be effected only by publication in a newspaper of general circulation.”25

 

WHAT DOES SUBSTITUTED SERVICE PRESUPPOSES?

 

THAT THE PLACE WHERE THE SUMMONS IS BEING SERVED IS THE DEFENDANT’S CURRENT RESIDENCE OR OFFICE/REGULAR PLACE OF BUSINESS.

 

THUS, WHERE THE DEFENDANT NEITHER RESIDES NOR HOLDS OFFICE IN THE ADDRESS STATED IN THE SUMMONS, SUBSTITUTED SERVICE CANNOT BE RESORTED TO.

 

“As we explained in Keister v. Navarro:

 

Under the Rules, substituted service may be effect[ ed] (a) by leaving copies of the summons at the defendant’s dwelling house or residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof The terms “dwelling house” or “residence” are generally held to refer to the time of service, hence it is not sufficient “to leave the copy at defendant’s former dwelling house, residence, or place of abode, as the case may be, after his removal therefrom.” They refer to the place where the person named in the summons is living at the time when the service is made, even though he may be temporarily out of the country at the time. Similarly, the terms “office” or “regular place of business” refer to the office or place of business of defendant at the time of service. Note that the rule designates the persons to whom copies of the process may be left. The rule presupposes that such a relation of confidence exists between the person with whom the copy is left and the defendant and, therefore, assumes that such person will deliver the process to defendant or in some way give him notice thereof.27 (Italics in the original, citations omitted.)”

 

WHY WAS OCAMPO’S CURRENT ADDRESS UNCERTAIN?

 

BASED ON THE REPORT OF THE SHERIFF AND AVERMENT OF BDO REMITTANCE.

 

“The report categorically stated that “defendant Helen M. Ocampo and her family were already in Italy,”28 without, however, identifying any specific address. Even BDO Remittance itself admitted in its petition for recognition that Ocampo’ s “whereabouts in Italy are no longer certain.”29 This, we note, is the reason why in alleging the two addresses of Ocampo, one in Italy and one in the Philippines, BDO Remittance used the phrase “last known [address ]”30 instead of the usual “resident of.” Not being a resident of the address where the summons was served, the substituted service of summons is ineffective.”

 

BUT BDO CITED THE CASE OF PALMA VS. GALVEZ. IS THIS CASE NOT APPLICABLE?

 

NOT APPLICABLE BECAUSE IN THAT CASE SERVICE OF SUMMONS WAS SERVED (BY SUBSTITUTED SERVICE) TO A PERSON WHO WAS TEMPORARILY OUT OF THE COUNTRY.

 

“BDO Remittance’s reliance on Palma v. Galvez31 is misplaced for the simple reason that the case involved service of summons to a person who is temporarily out of the country. In this case, however, Ocampo’s sojourn in Italy cannot be classified as temporary considering that she already resides there, albeit her precise address was not known.”

 

HOW SHALL THE MODES OF SERVICE OF SUMMONS BE OBSERVED?

 

MUST BE STRICTLY FOLLOWED.

 

“The purpose of this is to afford the defendant an opportunity to be heard on the claim against him.”

 

. . . . .

 

“The service of summons is a vital and indispensable ingredient of a defendant’s constitutional right to due process. As a rule, if a defendant has not been validly summoned, the court acquires no jurisdiction over his person, and a judgment rendered against him is void.34 Since the RTC never acquired jurisdiction over the person of Ocampo, the judgment rendered by the court could not be considered binding upon her.”

 

TO READ THE DECISION, JUST CLICK/DOWNLOAD THE FILE BELOW.

 

SCD-2017-0032-Express Padala (Italia) S.P.A. now BDO Remittance (Italia) S.P.A. Vs. Helen M. Ocampo

 

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