There’s no Escaping Debts… Or is there? Summons by Publication (Part 3)
Christian Andrew Labitoria Gallardo[1]
Moving in to another country may sound exciting for many. A new job, additional set of friends, unfamiliar weekend activites and a vast array of opportunities. Basically, a fresh start and a clean slate. Unfortunately for some though, this clean slate includes forgetting past monetary debts and liabilities.
In the previous article, we have discussed the proper way to serve summons on debtors who refuse to accept personal service. In this article, we shall discuss the appropriate manner of serving summons to debtors who to tend to hide from their creditors by moving to another country, either temporarily or permanently.
Service of Summons by Publication
For obvious reason, the personal service discussed in the previous article would not be feasible, or at least practical, if the identity or the whereabouts of the debtor is unknown, or the debtor is not in the Philippines, either permanently or temporarily. In such cases, summons may be served through publishing it in a newspaper in such place and for such time as the Court where the case is pending may direct. It must be noted however that aside from the publication, a copy of the summons must also be sent through registered mail to the last known address of the debtor.[2] Again, this is an exception to the general rule that summons must be served personally, and can only be resorted to upon a clear showing that either (I) the identity or the whereabouts of the debtor is unknown (II) the debtor is not residing in the Philippines or (II) the debtor is temporarily outside the country. Let us discuss this one by one.
Debtor whose Identity or Whereabouts is Unknown
Before the Court allows the service of summons by publication, it must be shown first that diligent inquiry has been made to ascertain the identity or location of the debtor.[3] This may include inquiring among common friends or stalking them in social media, as long as such efforts are duly documented. Once approved by the Court, aside from publication, sending a copy of the summons by registered mail to the last known address of the debtor must not be forgotten. This is a common mistake among those serving summons by publication, especially those aware that the debtor is no longer residing at the given address. Even if it may seem a futile effort, it must still be complied with for service by publications to be effective.
Debtor not residing in, or is temporarily outside, the Philippines
Summons by publications is likewise allowed if the debtor is not residing in the Philippines. It must be noted however that if the debtor is outside the country, either permanently or temporarily, summons by publication is only one of the many ways of serving summons. Substituted service, as discussed in the previous article, may also be resorted to. This is relevant especially where the debtor is only temporarily outside the country. Hence, service to a person of legal age and with sufficient maturity found in the official residence or principal place of business of the debtor is likewise valid.[4]
The Court may also prescribe other manner of service that it deems sufficient given the circumstance, such as service through telefax or email. In case service through other means such as e-mail is allowed by the Court, sending a copy of the summons through registered mail to the last known address of the debtor shall no longer be necessary.[5] Otherwise, such service shall still be mandatory.
Taking of properties
In case of debtors temporarily outside the country, the court may make a valid judgment against him as long as there was a valid service of summons, either by personal service, substituted service, summons by publication or in such manner prescribed by the court. The return of the debtor in the country to appear in court is immaterial, and the case may proceed without his presence as long as he sufficiently informed of the case through service of summons. It is a different case however for those permanently residing outside the country.
The sole fact that the debtor is permanent outside the country is not enough reason for the court to allow summons by publication. It must be first shown that the action either (I) affects the personal status of the petitioner, such as the legitimacy of his birth, (II) affects a property in the Philippines in which the debtor has an interest or (III) it involves a property of a debtor in the Philippines which may be taken in payment of the debt.[6] If the action does not fall in any of the three categories, the court may not proceed with the case and any judgment rendered shall be void.
Mere showing of a valid debt is not enough therefore for the court to adjudge against a debtor permanently residing abroad. The case must involve a property located in the Philippines that is owned by the debtor. Hence, if the debt is secured by a mortgage of land or a chattel mortgage of a car, it may be foreclosed even if the debtor is residing abroad. What if however there is no security attached to the debt?
In that case, one must first find a property of the debtor located in the Philippines and ask the court to “attach” it in payment of the debt. To “attach” means to ask the Court to reserve the said property, so that once the Court finally adjudge that there is a valid and demandable debt, the “attached” or reserved property may be sold in an auction for the payment of the debt. Any property of the debtor may be attached. It may be a house and lot, a car or any property of value, as long as it is clearly in the name of the debtor and located in the Philippines.
What if however the debtor permanently residing abroad does not have any property in the Philippines? Sad to say, the creditor shall be left with nothing, other than a hope that the debtor would feel guilty and go home to pay off his debts. Kinda long shot though. So they say, you can't escape your debts... unless you're residing abroad and you do not have any property in the Philippines.
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[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] § 22, Rule 14, 2020 Rules of Civil Procedure. [3] § 16, Rule 14, 2020 Rules of Civil Procedure [4] Montalban v Maximo, 22 SCRA 1070 (1968). [5] Romualdez-Licaros v Licaros, 401 SCRA 762 (2003). [6] § 17, Rule 14, 2020 Rules of Civil Procedure.
