Gonzales vs. Bañares

A notary public violates the 2004 Rules on Notarial Practice and Rule 1.01 of Canon 1 of the Code of Professional Responsibility when he notarizes a document without the signatory's personal appearance before him, even if the signatory previously signified conformity to the transaction.

Complainant Franco B. Gonzales is the son of Lilia Gonzales and Rodolfo Gonzales. Respondent Atty. Danilo B. Bañares is a lawyer and notary public. The administrative complaint concerns the notarization of a Deed of Absolute Sale over three parcels of land, and it is governed by the 2004 Rules on Notarial Practice and the Code of Professional Responsibility.

On September 23, 2010, a Deed of Absolute Sale covering three (3) parcels of land was executed between Lilia Gonzales, as seller, and Flordeliza Soriano, as buyer. The deed was notarized by Atty. Danilo B. Bañares. In the Acknowledgment, Bañares certified that Rodolfo Gonzales personally appeared before him on September 23, 2010, was known to him and known to be the same individual who executed the instrument, and acknowledged that the same was his free act and voluntary deed.

Franco B. Gonzales, the son of Lilia and Rodolfo, later discovered that his father's name and signature appeared in the document even though Rodolfo was in Irosin, Sorsogon at the time of the supposed signing. Franco likewise found that his own name and signature appeared as witness in the document although he was not present at the time of the signing. He maintained that Bañares knew of these facts but still proceeded with the notarization of the document.

Bañares denied the accusations. He claimed that Gonzales's feigned innocence regarding the subject sale and his absence during its execution were belied and proved untrue by affidavits, one of which was executed by Gonzales's own mother. Bañares asserted that he was present during the signing of the deed of sale as an instrumental witness, wrote his name, and affixed his signature in the presence of the contracting parties. He also claimed that Rodolfo actually pre-signed the document to manifest his conformity as the seller's husband, but not as co-owner of the property.

The evidence on record highly suggested that Rodolfo was not present at the time of the execution of the Deed of Absolute Sale on September 23, 2010. No documentary or testimonial evidence proved that, together with the parties and the other witnesses to the document, he was present and personally affixed his signature on the deed before Bañares. Bañares himself declared that Rodolfo merely pre-signed the document, which was contrary to his certification in the Acknowledgment that Rodolfo personally appeared before him on September 23, 2010. The affidavits of the other parties to the deed did not mention Rodolfo's presence.

• Improper Notarization: Complainant contended that a Deed of Absolute Sale covering three parcels of land was executed on September 23, 2010 between his mother Lilia Gonzales as seller and Flordeliza Soriano as buyer, and that it was notarized despite the absence of Rodolfo Gonzales and complainant himself.
• Notary's Knowledge: Complainant maintained that his father's name and signature appeared in the document although Rodolfo was in Irosin, Sorsogon at the time of the supposed signing, and that his own name and signature appeared as witness although he was not present; Bañares knew these facts but still proceeded with notarization.

• Denial: Respondent denied the accusations and claimed that complainant's feigned innocence and absence during execution were belied by affidavits, including one executed by complainant's own mother.
• Presence as Instrumental Witness: Respondent claimed he was present during the signing as an instrumental witness, wrote his name, and affixed his signature in the presence of the contracting parties.
• Rodolfo's Pre-Signing: Respondent claimed Rodolfo pre-signed the document to manifest his conformity as the seller's husband, but not as co-owner of the property.

• Administrative Liability: Whether Atty. Bañares is administratively liable for notarizing the Deed of Absolute Sale without Rodolfo Gonzales personally appearing before him.
• Penalty: Whether the proper penalty is suspension from the practice of law, revocation of notarial commission, and disqualification from being commissioned as a notary public.

• Administrative Liability: Yes. Bañares is administratively liable; a notary public may not notarize a document unless the signatories personally appear before him, as required by the 2004 Rules on Notarial Practice.
• Penalty: Yes. The Court imposed six months suspension from practice, revoked his notarial commission if presently commissioned, disqualified him for two years, and warned him.

• Administrative Liability: Notarization is the act that ensures the public that the provisions in the document express the true agreement between the parties; transgressing notarial rules sacrifices the integrity of notarized documents. A notary public assures that the parties appearing in the document are indeed the same parties who executed it, which cannot be achieved if the parties are not physically present before the notary public acknowledging the document; otherwise, terms favorable to vendors might be omitted and forgery becomes possible. The notary public's function is impressed with public interest and must be discharged with accuracy and fidelity, carefulness and faithfulness; notaries must inform themselves of the facts they certify and must not take part in illegal transactions. Notarization is not an empty, meaningless, routinary act and is invested with substantive public interest. Here, the evidence highly suggested Rodolfo was not present at the execution on September 23, 2010; no documentary or testimonial evidence proved his presence, and Bañares himself admitted Rodolfo merely pre-signed the document, contrary to his certification in the Acknowledgment that Rodolfo personally appeared before him on that date. The lack of mention of Rodolfo's presence in the affidavits of the other parties made his absence more manifest. Under Rule II, Section 1 of the 2004 Rules on Notarial Practice, acknowledgment requires an individual to appear in person before the notary public, be personally known or identified through competent evidence of identity, and represent that the signature was voluntarily affixed as his free act and deed. Under Rule IV, Section 2(b), a person shall not perform a notarial act if the signatory is not in the notary's presence personally at the time of notarization and is not personally known or otherwise identified through competent evidence of identity. A document should not be notarized unless the persons executing it are the very same ones personally appearing before the notary public; the affiants should be present to attest to the truth of the contents and to enable the notary to verify the genuineness of their signatures. Bañares's violation falls squarely within Rule 1.01 of Canon 1 of the Code of Professional Responsibility, which prohibits a lawyer from engaging in unlawful, dishonest, immoral, or deceitful conduct. Canon 1 mandates obedience to laws and legal processes; unlawful conduct includes any act or omission contrary to, prohibited or unauthorized by, in defiance of, disobedient to, or disregarding the law. Membership in the legal profession is a privilege bestowed on individuals learned in law and known to possess good moral character; lawyers must act with honesty and integrity beyond reproach and are most sacredly bound to uphold the law. Bañares could not avoid responsibility by pointing to a prior meeting with Lilia and Rodolfo and Rodolfo's prior conformity to the sale; he should have made arrangements so that all parties and witnesses would be present at the signing of the deed.
• Penalty: The Court upheld the findings and recommendations of the IBP that Bañares should be held liable for the questioned act. The IBP Board of Governors had modified the Investigating Commissioner's findings and recommendation and imposed a stiffer penalty of six months suspension from the practice of law, immediate revocation of commission as Notary Public, and disqualification for two years as Notary Public. The Court imposed the same penalties and warned Bañares that a repetition of the same or similar offense would be dealt with more severely.

• Notarization and the Personal Appearance Requirement — Notarization is not an empty, meaningless, routinary act; it is invested with substantive public interest. A notary public should not notarize a document unless the persons who signed it are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated in the document. The purpose is to enable the notary to verify the genuineness of the signatory's signature and to ascertain that the document is the signatory's free act and deed. The Court applied this rule to hold Bañares liable because Rodolfo did not personally appear, and Bañares's admission that Rodolfo pre-signed contradicted his acknowledgment certification.
• Duties of Notaries Public — A notary public's function should not be trivialized; notaries must discharge their powers and duties, which are impressed with public interest, with accuracy and fidelity, and with carefulness and faithfulness. They must at all times inform themselves of the facts they certify and must not take part in or allow themselves to be part of illegal transactions. They are enjoined from notarizing fictitious or spurious documents and must demand that the document be signed in their presence. The Court found Bañares violated these duties by notarizing the deed despite Rodolfo's absence.
• Rule 1.01, Canon 1, Code of Professional Responsibility — A lawyer shall not engage in unlawful, dishonest, immoral, or deceitful conduct. Unlawful conduct need not be criminal; it includes any act or omission contrary to, prohibited or unauthorized by, in defiance of, disobedient to, or disregarding the law. Dishonest conduct means a disposition to lie, cheat, deceive, defraud, or betray; deceitful conduct means a proclivity for fraudulent and deceptive misrepresentation, artifice, or device used upon another ignorant of the true facts to the prejudice and damage of the party imposed upon. The Court held that Bañares's violation of the notarial rules fell squarely within this prohibition.
• Lawyers' Duty to Uphold the Law — Membership in the legal profession is a privilege bestowed upon individuals who are not only learned in law but also known to possess good moral character. Lawyers must act and comport themselves with honesty and integrity beyond reproach to promote public faith in the legal profession, and they are most sacredly bound to uphold the law. The Court relied on this principle in imposing disciplinary sanctions on Bañares.

• "Well-settled is the rule that notarization is the act that ensures the public that the provisions in the document express the true agreement between the parties. Transgressing the rules on notarial practice sacrifices the integrity of notarized documents." — States the rationale for strict notarial compliance and the harm caused by violating notarial rules.
• "The Court cannot over-emphasize that notarization is not an empty, meaningless, routinary act. Notarization is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public." — Canonical formulation of notarization's public-interest character.
• "A document should not be notarized unless the persons who are executing it are the very same ones who are personally appearing before the notary public. The affiants should be present to attest to the truth of the contents of the document and to enable the notary to verify the genuineness of their signature." — States the personal-appearance requirement applied to Bañares.
• "Any act or omission that is contrary to, or prohibited or unauthorized by, or in defiance of, disobedient to, or disregards the law is unlawful." — Defines "unlawful" under Rule 1.01, Canon 1 of the Code of Professional Responsibility.

• Anudon vs. Atty. Cefra, 753 Phil. 421, 430 (2015) — Cited for the rule that notarization ensures the public that the document expresses the true agreement and that transgressing notarial rules sacrifices the integrity of notarized documents.
• Sultan vs. Atty. Macabanding, 745 Phil. 12, 20 (2014) — Cited for the notary public's duty to discharge powers and duties with accuracy, fidelity, carefulness, and faithfulness, and to inform themselves of the facts they certify.
• Almazan, Sr. vs. Atty. Suerte-Felipe, 743 Phil. 131, 136-137 (2014) — Cited for the principle that notarization is invested with substantive public interest and only qualified or authorized persons may act as notaries public.
• Coquia vs. Atty. Laforteza, A.C. No. 9364, February 8, 2017 — Cited for the requirement that a notary public should not notarize unless the signatories are the same persons who executed and personally appeared, enabling verification of genuineness and free act.
• Jimenez vs. Atty. Francisco, 749 Phil. 551, 565-566 (2014) — Cited for the definitions of unlawful, dishonest, and deceitful conduct under Rule 1.01 and for the privilege of the legal profession requiring good moral character and upholding the law.

• 2004 Rules on Notarial Practice, Rule II, Section 1 — Defines acknowledgment as requiring an individual to appear in person before the notary public, be personally known or identified through competent evidence of identity, and represent that the signature was voluntarily affixed as free act and deed. Applied: Bañares's acknowledgment falsely certified Rodolfo's personal appearance.
• 2004 Rules on Notarial Practice, Rule IV, Section 2(b) — Prohibits a person from performing a notarial act if the signatory is not in the notary's presence personally at the time of notarization and is not personally known or otherwise identified through competent evidence of identity. Applied: Bañares violated this when he notarized the deed despite Rodolfo's absence.
• Code of Professional Responsibility, Canon 1 — A lawyer shall uphold the Constitution, obey the laws of the land, and promote respect for law and legal processes. Applied: Bañares's violation of notarial rules breached this duty.
• Code of Professional Responsibility, Rule 1.01 — A lawyer shall not engage in unlawful, dishonest, immoral, or deceitful conduct. Applied: notarizing without personal appearance was unlawful conduct within Rule 1.01.

Justices Carpio (Chairperson), Perlas-Bernabe, Caguioa, and Reyes, Jr. concurred.