FABAY v. RESUENA

Posted: April 14, 2017 in case digests, legal ethics, PALE, Uncategorized
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FABAY v. RESUENA

A.C. No. 8723 | January 26, 2016

By: Karen P. Lustica

 

FACTS:

A Complaint for Disbarment filed by Gregory Fabay (Fabay) against respondent Atty. Rex A. Resuena for Gross Misconduct due to the unauthorized notarization of documents.

Virginia Perez, Marcella Perez, Amador Perez, Gloria Perez, Gracia Perez and Valentino Perez (plaintiffs) filed a complaint for ejectment/forcible entry against Gregory Fabay with respondent Atty. Resuena as their counsel.

Atty. Resuena notarized a special power of attorney (SPA) with plaintiffs as grantors, in favor of Apolo D. Perez. However, it appeared that it was only Remedios Perez who actually signed the SPA in behalf of Amador Perez, Valentino Perez, Gloria Perez and Gracia Perez.

The ejectment case was later on decided in favor of the client of Atty. Resuena. On appeal, the RTC ordered the case to be remanded to the court a quo to try the case on the merits. The trial court noted that both Amador Perez and Valentino Perez have already died.

Complainant alleged that Atty. Resuena violated the provisions of the Notarial Law by notarizing a special power of attorney notwithstanding the fact that two of the principals therein were already dead long before the execution of the SPA.

Complainant added that Atty. Resuena likewise notarized a complaint for ejectment in 2003 where Apolo Perez was made to appear as attorney-in-fact of Amador Perez and Valentino Perez when again the latter could not have possibly authorized him as they were already dead.

Further, complainant averred that Atty. Resuena, as counsel of the plainfiffs, participated in the barangay conciliations which is prohibited under the law.

Atty. Resuena explained that although it was just Remedios Perez who signed the SPA on behalf of Amador Perez, Valentino Perez, Gloria Perez and Gracia Perez, there was no misrepresentation since Remedios Perez is the spouse of Amador Perez and she was likewise previously authorized by the other co-owners, Gloria Perez and Gracia Perez, to represent them.

Atty. Resuena denied that he participated in the barangay conciliations and presented the certificate issued by the barangay captain showing that there was no record of his attendance during the confrontations of the parties before the barangay.

IBP-CBD found Atty. Resuena to have violated the provisions of the notarial law. The IBP-CBD recommended that his notarial commission be revoked and that he be disqualified to be commissioned as notary public for one (1) year.

ISSUE:

WON Atty. Resuena was guilty of Gross Misconduct due to the unauthorized notarization of documents.

HELD:

YES.

RATIO:

Section 2 (b) of Rule IV of the 2004 Rules on Notarial Practice stresses the necessity of the affiant’s personal appearance before the notary public:

x x x x

(b) A person shall not perform a notarial act if the person involved as signatory to the instrument or document –

(1) is not in the notary’s presence personally at the time of the notarization; and

(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.

In the instant case, it is undisputed that Atty. Resuena violated not only the notarial law but also his oath as a lawyer when he notarized the subject SPA without all the affiant’s personal appearance.

A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein. The purpose of this requirement is to enable the notary public to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act and deed.

A graver responsibility is placed upon Atty. Resuena by reason of his solemn oath to obey the laws and to do no falsehood or consent to the doing of any. The Code of Professional Responsibility (Rule 1.01 of Canon 1) also commands lawyers not to engage in unlawful, dishonest, immoral or deceitful conduct and to uphold at all times the integrity and dignity of the legal profession.

Moreover, the Notarial Law and the 2004 Rules on Notarial Practice require a duly-commissioned notary public to make the proper entries in his Notarial Register and to refrain from committing any dereliction or act which constitutes good cause for the revocation of commission or imposition of administrative sanction. Unfortunately, Atty. Resuena failed in both respects.

DISPOSITION: Atty. Rex A. Resuena is found GUILTY of malpractice as a notary public, and of violating the lawyer’s oath as well as Rule 1.01, Canon 1 of the Code of Professional Responsibility. Accordingly, he is DISBARRED from the practice of law and likewise PERPETUALLY DISQUALIFIED from being commissioned as a notary public.

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