Ghoster-Debtors: Summoning Defendants In a Civil Case (Part 2)
Christian Andrew Labitoria Gallardo[1]
Ghosting sucks. Suddenly cutting off a relationship with someone after mutually forming a physical or emotional attachment may seem like a cruel thing to do. What truly hurts however is the fact that no plausible reason was given for such an indifferent manner of discontinuing a relationship. You know what hurts harder though? When a debtor suddenly decides to “ghost” its creditors.
In the previous article, we have discussed the importance of serving summons, as well as the proper way of personally serving the same. What if, however, the debtor is hiding and refuses to attend court hearings? Worse, what if he skipped town to avoid his obligation? Or what if he is not someone familiar, such that his real or full name and address is not known? How can one invoke the aid of the court against an unknown debtor, or one that cannot be found?
Substituted Service
If the summons could not be served personally on the debtor after at least three attempts on two separate days within 30 days from its issuance, it may be served through a substituted manner; that is, through leaving a copy at his house or office.[2] Note that the requirement of trying to serve the summons personally at least three times on two different dates must first be complied. And nope, the number is not based on horoscope readings or feng shui. Given that serving the summons personally is still preferred as it ensures actual receipt of the debtor, the Court must be convinced that despite all efforts, personal service could not really be effected. As the title implies, the “substituted” service is a mere substitute to the preferred personal service, and the “3-attempts-on-2-separate-days” requirement must be strictly complied first.[3]
So to whom exactly must the summons served in a substituted manner be left?
Leaving a Copy in the House
If a copy of the summons is being left at the place of residence of the debtor, it must be left with a person at least 18 years old, residing in that place, and with sufficient understanding of the importance of the summons and the necessity that it be given to the debtor as soon as possible.[4] Moreover, that person must have a “relationship of confidence” with the debtor so as to ensure receipt of the latter of the summons.[5] Thus, it can be a Kasambahay or a relative staying with the defendant, but arguably not a grass cutter who works for the debtor on an on-call basis when the grasses are already 4 inches tall.
Leaving a Copy in the Office
If a copy is being left at the office or place of business of the debtor, it must be left with a competent person in charge thereof.[6] This pertains to the one managing the office or business, such as a president or a general manager.[7] Additionally, a person tasked to receive mails and correspondence in behalf of the debtor, such as his personal secretary, can also receive the summons. [8]
Leaving a Copy with the Head Guard or the Officer of the Subdivision or Condominium Building
If the person serving the summons is not being allowed to enter the subdivision or the building where the debtor resides or works despite making known his authority or purpose, he may leave a copy of the summons with an officer of the homeowners’ association or condominium corporation, or the chief security officer of the subdivision or building.[9]
Service of summons may also be made through e-mail. This is arguably the most convenient way of serving summons. However, it needs the approval of court where the case is pending.[10]
Expressly Preventing Anyone from Receiving the Summons
In serving summons in a substituted manner, a person of sufficient age and discretion must have actually received it on behalf of the debtor. What if the debtor however strictly instructed the members of his household, the staff in his office, or the security guard in his subdivision to refuse to entertain anyone attempting to serve summons upon him? Can such a clever ploy save him?
Short and quick answer: No. This actually happened in one case. An alleged debtor gave strict instructions to the guards in her subdivision not to allow anyone to proceed to her house when she is not around. The guard likewise refused to sign the receipt. The sheriff then just decided to leave the summons to the guard even if the receipt for which was not signed. The Court held that an overly strict application of the rule on substituted service of summons may be relaxed if the sheriff was prevented from effecting the service by the debtor himself. Accordingly, he debtor should bear the full consequences of his actions.[11]
Okay now let us take it to the next level. What if the debtor flew to another country? Can the Philippine Courts still do something to enforce the debt? Check out our article next week to find out. Meanwhile, please join our facebook page for more free online legal advice.
Cover Photo by Sergey Zolkin on Unsplash
[1]Christian Andrew Labitoria Gallardo is a recent graduate of the Ateneo School of Law with a Juris Doctor degree, and is currently an associate of the Sangalang and Gaerlan, Business Lawyers, a law firm specializing in labor, corporate and business law. You may reach him through a phone call or message (09157042132) or via email (andrew.gallardo@paladinslaw.org). [2][2] § 6, Rule 14 and § 20, Rule 14, 2020 Rules of Civil Procedure. [3] Laus v CA, 219 SCRA 688 [4] § 6, Rule 14, 2020 Rules of Civil Procedure. [5][5] Manotoc v CA (2006). [6] § 6, Rule 14, 2020 Rules of Civil Procedure. [7][7] Manotoc v CA (2006). [8] § 6, Rule 14, 2020 Rules of Civil Procedure. [9] § 6, Rule 14, 2020 Rules of Civil Procedure. [10] § 6, Rule 14, 2020 Rules of Civil Procedure. [11] Robinson v Millares, G.R. No. 163584 (2006).
