Malvar vs. Baleros

A notary public who notarizes a document without the affiant's personal appearance, fails to ascertain the affiant's identity through competent evidence of identity, and fails to record the notarial act in the notarial register violates the 2004 Rules on Notarial Practice and the Code of Professional Responsibility, warranting revocation of the notarial commission, disqualification from reappointment as notary public for two years, and suspension from the practice of law for six months.

The complainant, Dr. Basilio Malvar, was the owner of a parcel of land in Barangay Pagudpud, San Fernando City, La Union. On January 7, 2011, he executed a Deed of Absolute Sale in favor of Leah Mallari for ₱500,000.00, with the transaction acknowledged by his children through a Confirmation of Sale. The respondent, Atty. Cora Jane P. Baleros, was a notary public who notarized an Application for Certification of Alienable and Disposable Land that became the subject of the administrative complaint. The case arose within the framework of the 2004 Rules on Notarial Practice (A.M. No. 02-8-13-SC) and the Code of Professional Responsibility, which govern the conduct and duties of notaries public in the Philippines.

Dr. Basilio Malvar owned a parcel of land in Barangay Pagudpud, San Fernando City, La Union. On January 7, 2011, he executed a Deed of Absolute Sale in favor of Leah Mallari for ₱500,000.00, and his children acknowledged the transaction through a Confirmation of Sale. An agreement was made between Malvar and Mallari wherein Malvar undertook to facilitate the transfer of the lot's title to Mallari's name. However, without Malvar's knowledge and consent, Mallari allegedly filed an Application for Certification of Alienable and Disposable Land before the Community Environment and Natural Resources Office of the DENR in San Fernando City, La Union, using Malvar's name and signing the application.

A civil case for collection of sum of money was instituted by Mallari before the MTC of Aringay, La Union, seeking reimbursement for expenses she incurred in the transfer and titling of the property. A compromise agreement was forged between the parties, but it failed because two of the four checks issued by Malvar were unfunded. This prompted Mallari to file a criminal case for violation of Batas Pambansa Bilang 22 against Malvar before the MTC of Aringay, La Union. A criminal case for falsification of public document against Mallari was also filed before the Office of the Prosecutor and was pending before the MTCC of San Fernando City, La Union, Branch 1.

Malvar alleged that the crime was consummated through the conspiracy of Mallari and the respondent, Atty. Cora Jane P. Baleros. The Office of the Prosecutor determined that the evidence was insufficient to establish conspiracy between Mallari and the respondent, dropping the latter's name from the indictment. Malvar then initiated the disbarment petition, claiming that the respondent, by notarizing the Application for Certification of Alienable and Disposable Land, made it appear that he executed the same when he never went to the respondent's office, as he was in Manila at the time of the alleged notarization performing his duties as a doctor. The respondent refuted the allegations, narrating that Benny Telles, the complainant, and his sons came to her office to have the subject document notarized, and that she was certain of the complainant's identity. She argued that the charges were part of Malvar's scheme to avoid his obligations to Mallari.

The respondent admittedly signed and notarized the affidavit containing a jurat on August 18, 2010. Malvar furnished patients' record cards showing that he attended to patients at De Los Santos Medical Center in Quezon City on that date. Upon examination of the respondent's notarial register, it was discovered that Document No. 288, Page No. 59, Book No. LXXIII, Series of 2010 did not pertain to the Application for Certification of Alienable and Disposable Land but to a Joint Affidavit of Adjoining Owners executed by Ricardo Sibayan and Cecilia Flores. The challenged document nowhere appeared in the respondent's notarial register. The respondent offered plain oversight as an excuse and stated that her office staff usually fills up the register.

• Falsification of Public Document: Petitioner argued that the respondent consummated the crime of falsification of public document under Article 171 of the Revised Penal Code, and that the presumption of regularity in notarization had been overthrown and could not work in her favor.
• Absence of the Affiant: Petitioner stressed that he never appeared before the respondent to have the subject document notarized, and that the respondent made a mockery of the Notarial Rules by notarizing the Application for Certification of Alienable and Disposable Land in his absence.
• Imposition of Disbarment: Petitioner sought the imposition of the grave penalty of disbarment against the respondent.

• Personal Appearance of Affiant: Respondent refuted the allegations by narrating that Benny Telles, the complainant, and his sons came to her office to have the subject document notarized, and that she was certain as to the identity of the complainant.
• Scheme to Avoid Obligations: Respondent argued that the charges filed against her were all part of the complainant's scheme to avoid his obligations to Mallari as the buyer of his lot.
• Plain Oversight as Excuse: Respondent offered plain oversight as an excuse for the non-inclusion of the challenged document in her notarial register and stated that her office staff usually fills it up.

• Falsification of Public Document: Whether administrative liability should attach to the respondent for the alleged falsification of the Application for Certification of Alienable and Disposable Land.
• Notarization in Absence of Affiant: Whether the respondent should be held liable for notarizing the aforesaid document in the absence of the complainant.
• Double Entries in Notarial Registry: Whether the respondent should be held liable for double entries in her notarial registry.

• Falsification of Public Document: No. The Court declined to inquire into the merits of the criminal case for falsification pending before the MTCC, as jurisdiction properly pertains to the regular courts. The IBP-CBD correctly declined to resolve the falsification case to avert contradictory findings.
• Notarization in Absence of Affiant: Yes. The respondent violated Section 2(b) of Rule IV of the Notarial Rules by affixing her official signature and seal on the notarial certificate of the affidavit in the absence of the complainant and for failing to ascertain the affiant's identity through competent evidence.
• Double Entries in Notarial Registry: Yes. The respondent failed to record the Application for Certification of Alienable and Disposable Land in her notarial register, assigning the same notarial details to two distinct documents, and delegated her notarial function of recording entries to her staff, violating Section 2 of Rule VI of the Notarial Rules and Canon 9, Rule 9.01 of the CPR.

• Falsification of Public Document: The Court held that disbarment proceedings are sui generis, belonging to a class of their own and distinct from civil or criminal actions. However, it is judicious for an administrative body like the IBP-CBD not to pre-empt the course of action of the regular courts in order to avert contradictory findings. Commissioner Esquivel correctly declined to resolve the falsification case pending before the regular court to which jurisdiction properly pertains.

• Notarization in Absence of Affiant: The Court found that the respondent violated Section 2(b) of Rule IV of the Notarial Rules, which 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 to the notary or identified through competent evidence of identity. The unsubstantiated claim of the respondent that the complainant appeared before her could not prevail over the evidence supplied by the complainant, including patients' record cards showing he was at De Los Santos Medical Center in Quezon City on August 18, 2010. A jurat, as defined in jurisprudence, emphasizes the paramount requirements of the physical presence of the affiant and his act of signing the document before the notary public. Even granting that the complainant was present, the respondent remained unjustified in not requiring him to show competent proof of identification, as she failed to demonstrate that she personally knows the complainant. The physical presence of the affiant ensures the proper execution of the notary public's duty to determine whether the affiant's signature was voluntarily affixed.

• Double Entries in Notarial Registry: The Court found that the respondent failed to record the Application for Certification of Alienable and Disposable Land in her notarial register. The DENR issued a certification that despite diligent efforts, they could not locate the document but were certain it was received by their office. Upon examination of the respondent's notarial register, Document No. 288, Page No. 59, Book No. LXXIII, Series of 2010 pertained to a Joint Affidavit of Adjoining Owners, not the Application. The respondent's delegation of her notarial function of recording entries to her staff contravened the explicit provision of the Notarial Rules and violated Canon 9, Rule 9.01 of the CPR, which provides that a lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the Bar in good standing. The Court noted that notarization is not an empty, meaningless, or routinary act; it is through notarization that a private document is converted into a public one, making it admissible in evidence without need of preliminary proof of authenticity and due execution. If the document does not appear in the notarial records, doubt is engendered that it was not really notarized. However, the Court found no liability regarding the respondent's failure to retain an original copy and submit a duplicate to the Clerk of Court, as the requirement under Section 2(h) of Rule VI of the Notarial Rules applies only to instruments acknowledged before the notary public, not to documents containing a jurat, which is a distinct creature from an acknowledgment.

The Court found the respondent's acts to go beyond mere lapses in fulfilling her duties under the Notarial Rules, comprehending a parallel breach of the CPR, particularly Canon 9, Rule 9.01, Canon 1, Rule 1.01 (a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct), and the Lawyer's Oath. The Court deemed it proper to revoke the respondent's notarial commission, disqualify her from appointment as notary public for two years, and suspend her from the practice of law for six months, finding that disbarment was too grave a penalty.

• Jurat vs. Acknowledgment — A jurat is that end part of an affidavit in which the notary certifies that the instrument is sworn to before her, making the notarial certification essential. A jurat refers to an act in which an individual on a single occasion: (a) appears in person before the notary public and presents an instrument or document; (b) is personally known to the notary public or identified through competent evidence of identity; (c) signs the instrument or document in the presence of the notary; and (d) takes an oath or affirmation before the notary public. An acknowledgment, by contrast, is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. The Court applied this distinction to determine that the requirement of retaining an original copy and submitting a duplicate to the Clerk of Court under Section 2(h) of Rule VI of the Notarial Rules applies only to acknowledged instruments, not to documents containing a jurat.

• Physical Presence Requirement in Notarization — A jurat lays emphasis on the paramount requirements of the physical presence of the affiant as well as his act of signing the document before the notary public. The physical presence of the affiant ensures the proper execution of the duty of the notary public under the law to determine whether the former's signature was voluntarily affixed. The Court applied this doctrine in finding that the respondent violated Section 2(b) of Rule IV of the Notarial Rules by notarizing the document in the complainant's absence.

• Competent Evidence of Identity — The phrase "competent evidence of identity" refers to the identification of an individual based on: (a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual; or (b) the oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification. The Court applied this doctrine in finding that the respondent failed to require the complainant to show competent proof of identification and failed to demonstrate that she personally knows him.

• Notarization as a Public Function — Notarization is not an empty, meaningless or routinary act. It is through the act of notarization that a private document is converted into a public one, making it admissible in evidence without need of preliminary proof of authenticity and due execution. If the document or instrument does not appear in the notarial records and there is no copy of it therein, doubt is engendered that the document or instrument was not really notarized, so that it is not a public document and cannot bolster any claim made based on this document. The Court applied this doctrine in finding that the respondent's failure to record the document in her notarial register corresponded to falsely making it appear that the document was notarized when, in fact, it was not.

• Non-Delegation of Notarial Functions — A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the Bar in good standing. The Court applied this doctrine in finding that the respondent's delegation of her notarial function of recording entries in her notarial register to her staff was a clear contravention of the explicit provision of the Notarial Rules.

• "The physical presence of the affiant ensures the proper execution of the duty of the notary public under the law to determine whether the former's signature was voluntarily affixed." — This passage articulates the core rationale for the physical presence requirement in notarization, which was central to the Court's finding of liability against the respondent.

• "It is axiomatic that notarization is not an empty, meaningless or routinary act. It is through the act of notarization that a private document is converted into a public one, making it admissible in evidence without need of preliminary proof of authenticity and due execution." — This passage states the canonical formulation of the significance of notarization, frequently cited in subsequent jurisprudence on notarial practice.

• "If the document or instrument does not appear in the notarial records and there is no copy of it therein, doubt is engendered that the document or instrument was not really notarized, so that it is not a public document and cannot bolster any claim made based on this document." — This passage explains the consequence of a notary's failure to record a notarized document in the notarial register, which was a key ground for the respondent's administrative liability.

• "A jurat is a distinct creature from an acknowledgment." — This passage distinguishes between a jurat and an acknowledgment, which was essential to the Court's determination that the respondent could not be held liable for failing to retain an original copy and submit a duplicate to the Clerk of Court.

• Tan vs. IBP Commission on Bar Discipline, 532 Phil. 605 (2006) — Cited for the proposition that disbarment proceedings are sui generis and that it is judicious for an administrative body like the IBP-CBD not to pre-empt the course of action of the regular courts to avert contradictory findings.
• Bides-Ulaso vs. Atty. Noe-Lacsamana, 617 Phil. 1 (2009) — Cited for the definition of a jurat and the emphasis on the paramount requirements of the physical presence of the affiant and his act of signing the document before the notary public.
• Anudon vs. Cefra, A.C. No. 5482, February 10, 2015, 750 SCRA 231 — Cited for the proposition that the physical presence of the affiant ensures the proper execution of the notary public's duty to determine whether the affiant's signature was voluntarily affixed.
• Jandoquile vs. Atty. Revilla, Jr., 708 Phil. 337 (2013) — Cited for the definition of a jurat under Section 6 of Rule II of the Notarial Rules and the rule that non-presentation of the affiant's competent proof of identification is permitted if the notary public personally knows the affiant.
• Agagon vs. Atty. Bustamante, 565 Phil. 581 (2007) — Cited for the proposition that notarization converts a private document into a public one, making it admissible in evidence without need of preliminary proof of authenticity and due execution.
• Bernardo vs. Atty. Ramos, 433 Phil. 8 (2002) — Cited for the proposition that if a document does not appear in the notarial records, doubt is engendered that it was not really notarized.
• Atty. Benigno T. Bartolome vs. Atty. Christopher A. Basilio, A.C. No. 10783, October 14, 2015 — Cited as a case with similar factual milieu, where the Court meted out the penalty of revocation of notarial commission, disqualification for two years from appointment as notary public, and suspension for six months from the practice of law for various infringements of the Notarial Rules.
• Dizon vs. Atty. Cabucana, Jr., 729 Phil. 109 (2014) — Cited for the proposition that notaries public who notarize documents without the presence of all parties may be prohibited from being commissioned as notary public for two years.
• Tigno vs. Sps. Aquino, 486 Phil. 254 (2004) — Cited for the distinction between a jurat and an acknowledgment.
• In-N-Out Burger, Inc. vs. Sehwani, Incorporated and/or Benita's Frites, Inc., 595 Phil. 1119 (2008) — Cited for the definition of an acknowledgment as the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed.
• Lee vs. Atty. Tambago, 568 Phil. 363 (2008) — Cited for the proposition that notaries public are urged to observe with utmost care and fidelity the basic requirements in the performance of their duties.
• Agadan, et al. vs. Atty. Kilaan, 720 Phil. 625 (2013) — Cited for the proposition that failure to enter notarial acts in one's notarial register, notarizing a document without the personal presence of the affiants, and failure to properly identify the person who signed the questioned document constitute dereliction of a notary public's duties warranting revocation of a lawyer's commission as a notary public.
• Maria vs. Atty. Cortez, 685 Phil. 331 (2012) — Cited for the proposition that removal from the Bar should not be decreed when any punishment less severe would accomplish the end desired.

• Section 2(b), Rule IV, 2004 Rules on Notarial Practice — 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 to the notary public or otherwise identified through competent evidence of identity. The respondent violated this provision by notarizing the document in the complainant's absence and failing to ascertain his identity.
• Section 12, Rule II, 2004 Rules on Notarial Practice — Defines "competent evidence of identity" as identification based on a current identification document issued by an official agency bearing the photograph and signature of the individual, or the oath or affirmation of credible witnesses. The respondent failed to require the complainant to show competent proof of identification.
• Section 6, Rule II, 2004 Rules on Notarial Practice — Defines a jurat as an act in which an individual appears in person before the notary public, is personally known to the notary or identified through competent evidence of identity, signs the instrument in the notary's presence, and takes an oath or affirmation. The Court applied this definition in analyzing the respondent's notarial act.
• Section 2, Rule VI, 2004 Rules on Notarial Practice — Requires the notary to record in the notarial register at the time of notarization the entry number and page number, date and time of day, type of notarial act, title or description of the instrument, name and address of each principal, competent evidence of identity, name and address of credible witnesses, fee charged, address where notarization was performed, and any other significant circumstance. The respondent failed to record the Application for Certification of Alienable and Disposable Land in her notarial register.
• Section 2(h), Rule VI, 2004 Rules on Notarial Practice — Requires the notary to retain an original copy and submit a duplicate copy of the document to the Clerk of Court. The Court held that this requirement applies only to instruments acknowledged before the notary public, not to documents containing a jurat.
• Canon 9, Rule 9.01, Code of Professional Responsibility — Provides that a lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the Bar in good standing. The respondent violated this provision by delegating her notarial function of recording entries in her notarial register to her staff.
• Canon 1, Rule 1.01, Code of Professional Responsibility — Provides that a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. The respondent's acts comprehended a parallel breach of this provision.
• Article 171, Revised Penal Code — The provision on falsification of public documents, which the complainant invoked in his administrative complaint. The Court declined to rule on this matter as it was pending before the regular courts.
• Batas Pambansa Bilang 22 (The Bouncing Checks Law) — The law under which Mallari filed a criminal case against the complainant arising from the unfunded checks issued pursuant to the failed compromise agreement.

Presbitero J. Velasco, Jr. (Chairperson), Lucas P. Bersamin, Francis H. Jardeleza, and Alfredo Benjamin S. Caguioa (Designated Fifth Member of the Third Division per Special Order No. 2417 dated January 4, 2017).