G.R. No. 195615

Bank of Commerce v. Radio Philippines Network, Inc., et al., G.R. No. 195615, 21 April 2014
♦ Decision, Abad [J]
♦ Concurring Opinion, Velasco, jr. [J]
♦ Dissenting Opinion, Mendoza [J]
♦ Dissenting Opinion, Leonen [J]

BANK OF COMMERCE, Petitioner,
vs.
RADIO PHILIPPINES NETWORK, INC., INTERCONTINENTAL BROADCASTING CORPORATION, and BANAHA W BROADCASTING CORPORATION, THRU BOARD OF ADMINISTRATOR, and SHERIFF BIENVENIDO S. REYES, JR., Sheriff, Regional Trial Court of Quezon City, Branch 98, Respondents.

In late 2001 the Traders Royal Bank (TRB) proposed to sell to petitioner Bank of Commerce (Bancommerce) for ₱10.4 billion its banking business consisting of specified assets and liabilities. Bancommerce agreed subject to prior Bangko Sentral ng Pilipinas' (BSP's) approval of their Purchase and Assumption (P & A) Agreement. On November 8, 2001 the BSP approved that agreement subject to the condition that Bancommerce and TRB would set up an escrow fund of PSO million with another bank to cover TRB liabilities for contingent claims that may subsequently be adjudged against it, which liabilities were excluded from the purchase.

Specifically, the BSP Monetary Board Min. No. 58 (MB Res. 58) decided as follows:

1. To approve the revised terms sheet as finalized on September 21, 2001 granting certain incentives pursuant to Circular No. 237, series of 2000 to serve as a basis for the final Purchase and Assumption (P & A) Agreement between the Bank of Commerce (BOC) and Traders Royal Bank (TRB); subject to inclusion of the following provision in the P & A:

The parties to the P & A had considered other potential liabilities against TRB, and to address these claims, the parties have agreed to set up an escrow fund amounting to Fifty Million Pesos (₱50,000,000.00) in cash to be invested in government securities to answer for any such claim that shall be judicially established, which fund shall be kept for 15 years in the trust department of any other bank acceptable to the BSP. Any deviation therefrom shall require prior approval from the Monetary Board.

Following the above approval, on November 9, 2001 Bancommerce entered into a P & A Agreement with TRB and acquired its specified assets and liabilities, excluding liabilities arising from judicial actions which were to be covered by the BSP-mandated escrow of ₱50 million.

To comply with the BSP mandate, on December 6, 2001 TRB placed ₱50 million in escrow with Metropolitan Bank and Trust Co. (Metrobank) to answer for those claims and liabilities that were excluded from the P & A Agreement and remained with TRB. Accordingly, the BSP finally approved such agreement on July 3, 2002.

Shortly after or on October 10, 2002, acting in G.R. 138510, Traders Royal Bank v. Radio Philippines Network (RPN), Inc., this Court ordered TRB to pay respondents RPN, Intercontinental Broadcasting Corporation, and Banahaw Broadcasting Corporation (collectively, RPN, et al.) actual damages of ₱9,790,716.87 plus 12% legal interest and some amounts. Based on this decision, RPN, et al.filed a motion for execution against TRB before the Regional Trial Court (RTC) of Quezon City. But rather than pursue a levy in execution of the corresponding amounts on escrow with Metrobank, RPN, et al. filed a Supplemental Motion for Execution1 where they described TRB as "now Bank of Commerce" based on the assumption that TRB had been merged into Bancommerce.

On February 20, 2004, having learned of the supplemental application for execution, Bancommerce filed its Special Appearance with Opposition to the same2 questioning the jurisdiction of the RTC over Bancommerce and denying that there was a merger between TRB and Bancommerce. On August 15, 2005 the RTC issued an Order3 granting and issuing the writ of execution to cover any and all assets of TRB, "including those subject of the merger/consolidation in the guise of a Purchase and Sale Agreement with Bank of Commerce, and/or against the Escrow Fund established by TRB and Bank of Commerce with the Metropolitan Bank and Trust Company."

This prompted Bancommerce to file a petition for certiorari with the Court of Appeals (CA) in CA-G.R. SP 91258 assailing the RTC’s Order. On December 8, 2009 the CA4 denied the petition. The CA pointed out that the Decision of the RTC was clear in that Bancommerce was not being made to answer for the liabilities of TRB, but rather the assets or properties of TRB under its possession and custody.5

In the same Decision, the CA modified the Decision of the RTC by deleting the phrase that the P & A Agreement between TRB and Bancommerce is a farce or "a mere tool to effectuate a merger and/or consolidation between TRB and BANCOM." The CA Decision partly reads:

We are not prepared though, unlike the respondent Judge, to declare the PSA between TRB and BANCOM as a farce or "a mere tool to effectuate a merger and/or consolidation" of the parties to the PSA. There is just a dearth of conclusive evidence to support such a finding, at least at this point. Consequently, the statement in the dispositive portion of the assailed August 15, 2005 Order referring to a merger/consolidation between TRB and BANCOM is deleted.6

WHEREFORE, the herein consolidated Petitions are DENIED. The assailed Orders dated August 15, 2005 and February 22, 2006 of the respondent Judge, are AFFIRMED with the MODIFICATION that the pronouncement of respondent Judge in the August 15, 2005 Order that the PSA between TRB and BANCOM is a farce or "a mere tool to effectuate a merger and/or consolidation between TRB and BANCOM" is DELETED.

On January 8, 2010 RPN, et al. filed with the RTC a motion to cause the issuance of an alias writ of execution against Bancommerce based on the CA Decision. The RTC granted8 the motion on February 19, 2010 on the premise that the CA Decision allowed it to execute on the assets that Bancommerce acquired from TRB under their P & A Agreement.

On March 10, 2010 Bancommerce sought reconsideration of the RTC Order considering that the December 8,2009 CA Decision actually declared that no merger existed between TRB and Bancommerce. But, since the RTC had already issued the alias writ on March 9, 2010 Bancommerce filed on March 16, 2010 a motion to quash the same, followed by supplemental Motion9 on April 29, 2010.

On August 18, 2010 the RTC issued the assailed Order10 denying Bancommerce pleas and, among others, directing the release to the Sheriff of Bancommerce’s "garnished monies and shares of stock or their monetary equivalent" and for the sheriff to pay 25% of the amount "to the respondents’ counsel representing his attorney’s fees and ₱200,000.00 representing his appearance fees and litigation expenses" and the balance to be paid to the respondents after deducting court dues.

Aggrieved, Bancommerce immediately elevated the RTC Order to the CA via a petition for certiorari under Rule 65 to assail the Orders dated February 19, 2010 and August 18, 2010. On November 26, 2010 the CA11 dismissed the petition outright for the supposed failure of Bancommerce to file a motion for reconsideration of the assailed order. The CA denied Bancommerce’s motion for reconsideration on February 9, 2011, prompting it to come to this Court.

Section 1, Rule 65 of the Rules of Court provides that a petition for certiorari may only be filed when there is no plain, speedy, and adequate remedy in the course of law. Since a motion for reconsideration is generally regarded as a plain, speedy, and adequate remedy, the failure to first take recourse to is usually regarded as fatal omission.

But Bancommerce invoked certain recognized exceptions to the rule.12 It had to forego the filing of the required motion for reconsideration of the assailed RTC Order because a) there was an urgent necessity for the CA to resolve the questions it raised and any further delay would prejudice its interests; b) under the circumstances, a motion for reconsideration would have been useless; c) Bancommerce had been deprived of its right to due process when the RTC issued the challenged order ex parte, depriving it of an opportunity to object; and d) the issues raised were purely of law.

In this case, the records amply show that Bancommerce’s action fell within the recognized exceptions to the need to file a motion for reconsideration before filing a petition for certiorari.

First. The filing of a motion for reconsideration would be redundant since actually the RTC’s August 18, 2010 Order amounts to a denial of Bancommerce motion for reconsideration of the February 19, 2010 Order which granted the application for the issuance of the alias writ.

Significantly, the alias writ of execution itself, the quashal of which was sought by Bancommerce two times (via a motion to quash the writ and a supplemental motion to quash the writ) derived its existence from the RTC’s February 19, 2010 Order. Another motion for reconsideration would have been superfluous. The RTC had not budge on those issues in the preceding incidents. There was no point in repeatedly asking it to reconsider.

Second. An urgent necessity for the immediate resolution of the case by the CA existed because any further delay would have greatly prejudiced Bancommerce. The Sheriff had been resolute and relentless in trying to execute the judgment and dispose of the levied assets of Bancommerce. Indeed, on April 22, 2010 the Sheriff started garnishing Bancommerce’s deposits in other banks, including those in Banco de Oro-Salcedo-Legaspi Branch and in the Bank of the Philippine Islands Ayala Paseo Branch.

Further, the Sheriff forcibly levied on Bancommerce’s Lipa Branch cash on hand amounting to ₱1,520,000.00 and deposited the same with the Landbank. He also seized the bank’s computers, printers, and monitors, causing the temporary cessation of its banking operations in that branch and putting the bank in an unwarranted danger of a run. Clearly, Bancommerce had valid justifications for skipping the technical requirement of a motion for reconsideration.

Merger is a re-organization of two or more corporations that results in their consolidating into a single corporation, which is one of the constituent corporations, one disappearing or dissolving and the other surviving. To put it another way, merger is the absorption of one or more corporations by another existing corporation, which retains its identity and takes over the rights, privileges, franchises, properties, claims, liabilities and obligations of the absorbed corporation(s). The absorbing corporation continues its existence while the life or lives of the other corporation(s) is or are terminated.13

Indubitably, it is clear that no merger took place between Bancommerce and TRB as the requirements and procedures for a merger were absent. A merger does not become effective upon the mere agreement of the constituent corporations.15 All the requirements specified in the law must be complied with in order for merger to take effect. Section 79 of the Corporation Code further provides that the merger shall be effective only upon the issuance by the Securities and Exchange Commission (SEC) of a certificate of merger.

Here, Bancommerce and TRB remained separate corporations with distinct corporate personalities. What happened is that TRB sold and Bancommerce purchased identified recorded assets of TRB in consideration of Bancommerce’s assumption of identified recorded liabilities of TRB including booked contingent accounts. There is no law that prohibits this kind of transaction especially when it is done openly and with appropriate government approval. Indeed, the dissenting opinions of Justices Jose Catral Mendoza and Marvic Mario Victor F. Leonen are of the same opinion. In strict sense, no merger or consolidation took place as the records do not show any plan or articles of merger or consolidation. More importantly, the SEC did not issue any certificate of merger or consolidation.

The dissenting opinion of Justice Mendoza finds, however, that a "de facto" merger existed between TRB and Bancommerce considering that (1) the P & A Agreement between them involved substantially all the assets and liabilities of TRB; (2) in an Ex Parte Petition for Issuance of Writ of Possession filed in a case, Bancommerce qualified TRB, the petitioner, with the words "now known as Bancommerce;" and (3) the BSP issued a Circular Letter (series of 2002) advising all banks and non-bank financial intermediaries that the banking activities and transaction of TRB and Bancommerce were consolidated and that the latter continued the operations of the former.

The idea of a de facto merger came about because, prior to the present Corporation Code, no law authorized the merger or consolidation of Philippine Corporations, except insurance companies, railway corporations, and public utilities.16 And, except in the case of insurance corporations, no procedure existed for bringing about a merger.17 Still, the Supreme Court held in Reyes v. Blouse,18 that authority to merge or consolidate can be derived from Section 28½ (now Section 40) of the former Corporation Law which provides, among others, that a corporation may "sell, exchange, lease or otherwise dispose of all or substantially all of its property and assets" if the board of directors is so authorized by the affirmative vote of the stockholders holding at least two-thirds of the voting power. The words "or otherwise dispose of," according to the Supreme Court, is very broad and in a sense, covers a merger or consolidation.

But the facts in Reyes show that the Board of Directors of the Corporation being dissolved clearly intended to be merged into the other corporations. Said this Court:

It is apparent that the purpose of the resolution is not to dissolve the [company] but merely to transfer its assets to a new corporation in exchange for its corporation stock. This intent is clearly deducible from the provision that the [company] will not be dissolved but will continue existing until its stockholders decide to dissolve the same. This comes squarely within the purview of Section 28½ of the corporation law which provides, among others, that a corporation may sell, exchange, lease, or otherwise dispose of all its property and assets, including its good will, upon such terms and conditions as its Board of Directors may deem expedient when authorized by the affirmative vote of the shareholders holding at least 2/3 of the voting power. [The phrase] "or otherwise dispose of" is very broad and in a sense covers a merger or consolidation."19

In his book, Philippine Corporate Law,20 Dean Cesar Villanueva explained that under the Corporation Code, "a de facto merger can be pursued by one corporation acquiring all or substantially all of the properties of another corporation in exchange of shares of stock of the acquiring corporation. The acquiring corporation would end up with the business enterprise of the target corporation; whereas, the target corporation would end up with basically its only remaining assets being the shares of stock of the acquiring corporation." (Emphasis supplied)

No de facto merger took place in the present case simply because the TRB owners did not get in exchange for the bank’s assets and liabilities an equivalent value in Bancommerce shares of stock. Bancommerce and TRB agreed with BSP approval to exclude from the sale the TRB’s contingent judicial liabilities, including those owing to RPN, et al.21

The Bureau of Internal Revenue (BIR) treated the transaction between the two banks purely as a sale of specified assets and liabilities when it rendered its opinion22 on the tax consequences of the transaction given that there is a difference in tax treatment between a sale and a merger or consolidation.

Indubitably, since the transaction between TRB and Bancommerce was neither a merger nor a de facto merger but a mere "sale of assets with assumption of liabilities," the next question before the Court is whether or not the RTC could regard Bancommerce as RPN, et al.’s judgment debtor.

It is pointed out that under common law,23 if one corporation sells or otherwise transfers all its assets to another corporation, the latter is not liable for the debts and liabilities of the transferor if it has acted in good faith and has paid adequate consideration for the assets, except: (1) where the purchaser expressly or impliedly agrees to assume such debts; (2) where the transaction amounts to a consolidation or merger of the corporations; (3) where the purchasing corporation is merely a continuation of the selling corporation; and (4) where the transaction is entered into fraudulently in order to escape liability for such debts.24

But, in the first place, common law has no application in this jurisdiction where existing statutes governing the situation are in place. Secondly, none of the cited exceptions apply to this case.

1. Bancommerce agreed to assume those liabilities of TRB that are specified in their P & A Agreement. That agreement specifically excluded TRB’s contingent liabilities that the latter might have arising from pending litigations in court, including the claims of respondent RPN, et al.

In consideration of the sale of identified recorded assets and properties covered by this Agreement, BANCOMMERCE shall assume identified recorded TRB’s liabilities including booked contingent liabilities as listed and referred to in its Consolidated Statement of Condition as of August 31, 2001, in the total amount of PESOS: TEN BILLION FOUR HUNDRED ONE MILLION FOUR HUNDRED THIRTY SIX THOUSAND (₱10,410,436,000.00), provided that the liabilities so assumed shall not include:

Further, even without the escrow, TRB continued to be liable to its creditors although under its new name. Parenthetically, the P & A Agreement shows that Bancommerce acquired greater amount of TRB liabilities than assets. Article II of the P & A Agreement shows that Bancommerce assumed total liabilities of ₱10,401,436,000.00 while it received total assets of only ₱10,262,154,000.00. This proves the arms length quality of the transaction.

The dissenting opinion of Justice Mendoza cites certain instances indicating the existence of a de facto merger in this case. One of these is the fact that the P & A Agreement involved substantially all the assets and liabilities of TRB. But while this is true, such fact alone would not prove the existence of a de facto merger because a corporation "does not really lose its juridical entity"27 on account of such sale. Actually, the law allows a corporation to "sell, lease, exchange, mortgage, pledge or otherwise dispose of all or substantially all of its properties and assets including its goodwill" to another corporation.28 This is not merger because it recognizes the separate existence of the two corporations that transact the sale.

The dissenting opinion of Justice Mendoza claims that another proof of a de facto merger is that in a case, Bancommerce qualified TRB in its Ex Parte Petition for Issuance of Writ of Possession with the words "now known as Bancommerce." But paragraph 3 of the Ex Parte Petition shows the context in which such qualification was made. It reads:29

3. On November 09, 2001, Bank of Commerce and Traders Royal Bank executed and signed a Purchase and Sale Agreement. The account of the mortgagor was among those acquired under the agreement. Photocopy of the agreement is hereto attached as Annex "A."

It is thus clear that the phrase "now known as Bank of Commerce" used in the petition served only to indicate that Bancommerce is now the former property owner’s creditor that filed the petition for writ of possession as a result of the P & A Agreement. It does not indicate a merger.

Lastly, the dissenting opinion of Justice Mendoza cited the Circular Letter (series of 2002) issued by the BSP advising all banks and non-bank financial intermediaries that the banking activities and transaction of TRB and Bancommerce were consolidated and that the latter continued the operations of the former as an indication of a de facto merger. The Circular Letter30 reads:

Indeed, what was "consolidated" per the above letter was the banking activities and transactions of Bancommerce and TRB, not their corporate existence. The BSP did not remotely suggest a merger of the two corporations. What controls the relationship between those corporations cannot be the BSP letter circular, which had been issued without their participation, but the terms of their P & A Agreement that the BSP approved through its Monetary Board.

Also, in a letter dated November 2,2005 Atty. Juan De Zuñiga, Jr., Assistant Governor and General Counsel of the BSP, clarified to the RTC the use of the word "merger" in their January 29, 2003 letter. According to him, the word "merger" was used "in a very loose sense x x x and merely repeated, for convenience" the term used by the RTC.31 It further stated that "Atty. Villanueva did not issue any legal pronouncement in the said letter, which is merely transmittal in nature. Thus it cannot, by any stretch of construction, be considered as binding on the BSP. What is binding to the BSP is MB Res. 58 referring to the aforementioned transaction between TRB and Bancommerce as a purchase and assumption agreement."32

Since there had been no merger, Bancommerce cannot be considered as TRB’s successor-in-interest and against which the Court’s Decision of October 10, 2002 in G.R. 138510 may been forced. Bancommerce did not hold the former TRBs assets in trust for it as to subject them to garnishment for the satisfaction of the latter’s liabilities to RPN, et al. Bancommerce bought and acquired those assets and thus, became their absolute owner.

According to the dissenting opinion of Justice Mendoza, the CA Decision dated December 8, 2009 did not reverse the RTC’s Order causing the issuance of a writ of execution against Bancommerce to enforce the judgment against TRB. It also argues that the CA did not find grave abuse of discretion on the RTC’s part when it issued its August 15, 2005 Order granting the issuance of a writ of execution. In fact, it affirmed that order.1âwphi1 Moreover, it argued that the CA’s modification of the RTC Order merely deleted an opinion there expressed and not reversed such order.

But it should be the substance of the CA’s modification of the RTC Order that should control, not some technical flaws that are taken out of context. Clearly, the RTC’s basis for holding Bancommerce liable to TRB was its finding that TRB had been merged into Bancommerce, making the latter liable for TRB’s debts to RPN, et al. The CA clearly annulled such finding in its December 8, 2009 Decision in CA-G.R. SP 91258, thus:

Thus, the CA was careful in its decision to restrict the enforcement of the writ of execution only to "TRB’s properties found in Bancommerce’s possession." Indeed, the CA clearly said in its decision that it was not Bancommerce that the RTC Order was being made to answer for TRB’s judgment credit but "the assets/properties of TRB in the hands of BANCOM." The CA then went on to state that it is not prepared, unlike the RTC, to declare the P & A Agreement but a farce or a "mere tool to effectuate a merger and/or consolidation." Thus, the CA deleted the RTC’s reliance on such supposed merger or consolidation between the two as a basis for its questioned order.

The enforcement, therefore, of the decision in the main case should not include the assets and properties that Bancommerce acquired from TRB. These have ceased to be assets and properties of TRB under the terms of the BSP-approved P & A Agreement between them. They are not TRB assets and properties in the possession of Bancommerce. To make them so would be an unwarranted departure from the CA’s Decision in CA-G.R. SP 91258.

WHEREFORE, the petition is GRANTED. The assailed Resolution of November 26, 2010 and the Resolution of February 9, 2011 of the Court of Appeals both in CA-G.R. SP 116704 are REVERSED and SET ASIDE. Accordingly, the assailed Orders dated February 19, 2010 and August 18, 2010, the Alias Writ of Execution dated March 9, 2010, all issued by the Regional Trial Court and all orders, notices of garnishment/levy, or notices of sale and any other action emanating from the Orders dated February 19, 2010 and August 18, 2010 in Civil Case Q-89-3580 are ANNULLED and SET ASIDE. The Temporary Restraining Order issued by this Court on April 13, 2011 is hereby made PERMANENT.

I dissent. See separate opinion
MARVIC MARIO VICTOR F. LEONEN
Associate Justice

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.