Fabay vs. Atty. Resuena

A notary public must 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 personal appearance of all affiants before the notary public is an essential requirement of notarization, and failure to observe this requirement constitutes grounds for disbarment and perpetual disqualification from notarial practice.

The case involves a complaint for disbarment filed by Gregory Fabay against Atty. Rex A. Resuena, who served as counsel for the plaintiffs in an ejectment case before the Municipal Trial Court of Pili, Camarines Sur. The notarization of legal documents is invested with substantive public interest, as it converts private documents into public documents admissible in evidence without further proof of authenticity. The 2004 Rules on Notarial Practice, particularly Section 2(b) of Rule IV, requires the affiant's personal appearance before the notary public at the time of notarization.

On October 15, 2003, Virginia Perez, Marcella Perez, Amador Perez, Gloria Perez, Gracia Perez, and Valentino Perez filed a complaint for ejectment/forcible entry against Gregory Fabay before the Municipal Trial Court of Pili, Camarines Sur, with Atty. Rex A. Resuena as their counsel. On the same date, Atty. Resuena notarized a special power of attorney (SPA) with the plaintiffs as grantors, in favor of Apolo D. Perez, authorizing him to represent them "to sue and be sued in any administrative or judicial tribunal in connection with any suit that may arise out of their properties" covered by TCT No. RT-1118 (14380), 38735, and 38737. The SPA was recorded in Atty. Resuena's notarial book as Doc. No. 126, Page 26, Book 1, Series of 2003.

It appeared that only Remedios Perez actually signed the SPA on behalf of Amador Perez, Valentino Perez, Gloria Perez, and Gracia Perez. The signatures of these four principals were all signed as "BY: REMEDIOS PEREZ." Remedios Perez is the spouse of Amador Perez and the mother of Apolo Perez. The IBP-CBD found that two of the parties, Amador Perez and Valentino Perez, were already dead during the execution of the SPA — Amador Perez died on September 7, 1988, and Valentino Perez died on April 26, 1976. The other two parties, Gracia Perez and Gloria Perez, were both residing in the United States of America.

The ejectment case was decided in favor of Atty. Resuena's client; however, on appeal, the Regional Trial Court of Pili, Camarines Sur, Branch 32, ordered the case remanded to the court a quo to try the case on the merits. In its Decision dated August 4, 2005, the trial court noted that both Amador Perez and Valentino Perez had already died on September 7, 1988, and April 26, 1976, respectively.

Complainant Fabay alleged that Atty. Resuena violated the provisions of the Notarial Law by notarizing the SPA notwithstanding the fact that two of the principals therein were already dead long before its execution. 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 the latter could not have possibly authorized him as they were already dead. Further, complainant averred that Atty. Resuena, as counsel of the plaintiffs, participated in the barangay conciliations, which is prohibited under the law.

Atty. Resuena denied the allegations and claimed the complaint was tainted with malice. He explained that although it was just Remedios Perez who signed the SPA on behalf of the other principals, there was no misrepresentation since Remedios Perez is the spouse of Amador Perez and she was previously authorized by the other co-owners, Gloria Perez and Gracia Perez, to represent them. At the mandatory conference, Atty. Resuena denied participating in the barangay conciliations and presented a certificate from the barangay captain showing no record of his attendance. He did not deny that Amador Perez and Valentino Perez were already deceased at the time of the execution and notarization of the SPA, but argued that in the acknowledgment portion of the SPA, the names of Amador Perez and Valentino Perez were not included as among the parties who personally appeared before him.

• Violation of Notarial Law: 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, Amador Perez and Valentino Perez, were already dead long before the execution of the SPA.
• Misrepresentation in Ejectment Complaint: Complainant added that Atty. Resuena 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 the latter could not have possibly authorized him as they were already dead.
• Prohibited Participation in Barangay Conciliation: Complainant averred that Atty. Resuena, as counsel of the plaintiffs, participated in the barangay conciliations, which is prohibited under the law.
• Penalty Enhancement on Reconsideration: Complainant moved for reconsideration of the IBP resolution, praying that the penalty of suspension be imposed against Atty. Resuena as an erring member of the bar and not merely as a notary public.

• Malice in Filing: Atty. Resuena claimed the complaint was tainted with malice, considering that it was only filed with the Supreme Court on August 20, 2010, when it was allegedly prepared last June 18, 2006.
• Authority of Remedios Perez: 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 previously authorized by the other co-owners, Gloria Perez and Gracia Perez, to represent them.
• Exclusion from Acknowledgment: Atty. Resuena insisted that in the acknowledgment portion of the SPA, the names of Amador Perez and Valentino Perez were not included as among the parties who personally appeared before him, thus there was no misrepresentation done in the notarization of the SPA.
• Denial of Barangay Participation: Atty. Resuena denied that he participated in the barangay conciliations and presented a certificate issued by the barangay captain showing that there was no record of his attendance during the confrontations of the parties before the barangay.

• Violation of Notarial Law: Whether Atty. Resuena violated the Notarial Law and the 2004 Rules on Notarial Practice when he notarized the SPA without the personal appearance of all the affiants, including two who were already deceased.
• Violation of the Lawyer's Oath and Code of Professional Responsibility: Whether Atty. Resuena's acts constituted a violation of his lawyer's oath and Rule 1.01, Canon 1 of the Code of Professional Responsibility.
• Proper Penalty: Whether the penalty of disbarment and perpetual disqualification from being commissioned as a notary public is proper under the circumstances.

• Violation of Notarial Law: Yes. Atty. Resuena violated the Notarial Law and the 2004 Rules on Notarial Practice when he notarized the SPA without the personal appearance of all the affiants, including two who were already deceased at the time of notarization.
• Violation of the Lawyer's Oath and Code of Professional Responsibility: Yes. Atty. Resuena's acts constituted a serious breach of the fundamental obligation imposed upon him by Rule 1.01, Canon 1 of the Code of Professional Responsibility, which prohibits lawyers from engaging in unlawful, dishonest, immoral, or deceitful conduct.
• Proper Penalty: Disbarment and perpetual disqualification from being commissioned as a notary public. The Court modified the IBP's recommended penalty of two years disqualification from notarial practice, finding that Atty. Resuena's deliberate violation of the notarial law and his role as an instrument of fraud warranted the more severe penalty.

• Violation of Notarial Law: The Court held that notarization of a document is not an empty act or routine; it is invested with substantive public interest. Notarization converts a private document into a public document, making it admissible in evidence without further proof of authenticity. A notarial document is by law entitled to full faith and credit upon its face. 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. The Court found it undisputed that Atty. Resuena violated the notarial law when he notarized the subject SPA without all the affiants' personal appearance. It was appalling that Atty. Resuena permitted Remedios Perez to sign on behalf of Amador Perez and Valentino Perez knowing fully well that the two were already dead at that time, and more so when he justified that the latter's names were nevertheless not included in the acknowledgment albeit they are signatories of the SPA. Equally deplorable was the fact that Remedios was allowed to sign on behalf of Gracia Perez and Gloria Perez, who were residing abroad. Atty. Resuena, in notarizing the SPA, contented himself with Remedios' representation of four of the six principals, doing away with the actual physical appearance of all the parties. The Court cited Agbulos vs. Atty. Viray and Dela Cruz-Sillano vs. Pangan, reiterating that doing away with the essential requirement of physical presence of the affiant does not take into account the likelihood that the documents may be spurious or that the affiants may not be who they purport to be.

• Violation of the Lawyer's Oath and Code of Professional Responsibility: The Court emphasized that 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 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. It requires every lawyer to uphold the Constitution, obey the laws of the land, and promote respect for the law and legal processes. The Notarial Law and the 2004 Rules on Notarial Practice require a duly-commissioned notary public to make 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. Atty. Resuena failed in both respects. Through his acts, he committed a serious breach of the fundamental obligation imposed upon him by the Code of Professional Responsibility, particularly Rule 1.01 of Canon 1. As a lawyer and as an officer of the court, it was his duty to serve the ends of justice, not to corrupt it. Having appeared to have intentionally violated the notarial law, Atty. Resuena allowed himself to be an instrument of fraud which the Court will not tolerate.

• Proper Penalty: The Court concurred with the findings of the IBP except as to the penalty. While the IBP recommended two years disqualification from notarial practice, the Court found that the severity of Atty. Resuena's misconduct warranted disbarment and perpetual disqualification from being commissioned as a notary public. The Court noted that Atty. Resuena, being the counsel of the plaintiffs-affiants, can be assumed to have known the circumstances of the subject case, as well as the fact that affiants Amador Perez and Valentino Perez were already deceased at the time of the execution of the subject SPA. His failure to perform his duty as a notary public resulted not only in damage to those directly affected by the notarized document but also made a mockery of the integrity of a notary public and degraded the function of notarization.

• Personal Appearance Requirement in Notarization — 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. In this case, the Court applied this doctrine to find that Atty. Resuena violated the notarial law by notarizing the SPA without the personal appearance of all affiants, including two who were already deceased.

• Notarization as an Act Invested with Substantive Public Interest — Notarization is not an empty act or routine; it converts a private document into a public document, making it admissible in evidence without further proof of authenticity. A notarial document is by law entitled to full faith and credit upon its face. Courts, administrative agencies, and the public at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private instrument. The Court applied this doctrine to emphasize the gravity of Atty. Resuena's violation, which undermined the confidence of the public in the integrity of notarized conveyances.

• "Time and again, we have held that notarization of a document is not an empty act or routine. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public. Notarization converts a private document into a public document thus making that document admissible in evidence without further proof of its authenticity." — This passage articulates the foundational principle underlying the Court's decision, establishing the public interest dimension of notarization and the gravity of a notary's duties.

• "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." — This is the canonical formulation of the personal appearance requirement in notarial practice, which the Court applied to find Atty. Resuena liable for violating the notarial law.

• "Doing away with the essential requirement of physical presence of the affiant does not take into account the likelihood that the documents may be spurious or that the affiants may not be who they purport to be." — This passage, quoted from Agbulos vs. Atty. Viray, explains the rationale behind the personal appearance requirement and why its disregard undermines the integrity of notarized documents.

• Agbulos vs. Atty. Viray, A.C. No. 7350, February 18, 2013 — Cited as controlling precedent reiterating the necessity of personal appearance of affiants before a notary public; the Court quoted this case to emphasize the adverse consequences of notarizing documents without the physical presence of affiants.

• Dela Cruz-Sillano vs. Pangan, 592 Phil. 219 (2008) — Cited in Agbulos and relied upon by the Court for the proposition that 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.

• Bernardo vs. Atty. Ramos, 433 Phil. 8 (2002) — Cited for the principle that notarization converts a private document into a public document admissible in evidence without further proof of authenticity, and that a notarial document is by law entitled to full faith and credit upon its face.

• Sicat vs. Atty. Ariola, Jr., 496 Phil. 7 (2005) — Cited for the proposition that as a lawyer and officer of the court, it is the lawyer's duty to serve the ends of justice, not to corrupt it, and that oath-bound lawyers are expected to act at all times in accordance with law and ethics.

• Section 2(b), Rule IV, 2004 Rules on Notarial Practice — Provides that a person shall not perform a notarial act if the person involved as signatory to the instrument or document is not in the notary's presence personally at the time of the notarization and is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity. The Court applied this provision to find that Atty. Resuena violated the notarial law by notarizing the SPA without the personal appearance of all affiants.

• Rule 1.01, Canon 1, Code of Professional Responsibility — Prohibits a lawyer from engaging in unlawful, dishonest, immoral, or deceitful conduct. The Court found that Atty. Resuena's notarization of the SPA under the circumstances constituted a serious breach of this fundamental obligation.

• Canon 1, Code of Professional Responsibility — Requires a lawyer to uphold the Constitution, obey the laws of the land, and promote respect for law and for legal processes. The Court found that Atty. Resuena failed to comply with this canon.

• Section 249, Notarial Law — Lists the grounds for revocation of a notary public's commission, including the failure of the notary to make proper entries in his notarial register and any other dereliction or act which shall appear to the judge to constitute good cause for removal. The Court noted that Atty. Resuena failed in his duties under this provision.

Chief Justice Maria Lourdes P. A. Sereno; Associate Justices Antonio T. Carpio, Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro, Arturo D. Brion, Diosdado M. Peralta, Lucas P. Bersamin, Mariano C. Del Castillo, Jose Portugal Perez, Jose Catral Mendoza, Bienvenido L. Reyes, Estela M. Perlas-Bernabe, Marvic M.V.F. Leonen, and Francis H. Jardeleza.