For legal research purposes of our readers, below is a pleading
our law office had filed with the Bangko Sentral ng Pilipinas (BSP) in connection
with an administrative case our client had filed against some officers of a savings
bank in Metro Manila. (All references to the names of the parties and the like have been deleted).
“R E P
L Y
(In Re: Respondents xxx Bank, Et. Al.’s “CONSOLIDATED
ANSWER”; And Respondent xxx’s “SWORN ANSWER”)
THE COMPLAINANT, by
counsel, respectfully states:
IN RE: XXX Xxx Bank, Et. Al.’s CONSOLIDATED ANSWER
The admissions of
respondents XXX Xxx Bank, Et. Al. stated in their CONSOLIDATED ANSWER, both qualified and unqualified, are hereby
noted, with gratitude, i.e., Paragraphs x x x and xxx of the COMPLAINT.
The Consolidated Answer
of the respondents XXX Xxx Bank, Et. Al. denies responsibility on the theory
that:
1.
the instant
case is simply a “ploy to … implicate the Bank…to recover the funds (the
complainant) had invested”;
2.
the Bank was a “solvent target”;
3.
the Bank was
“not…privy” to the subject transactions;
4.
the complaint
filed by the complainant with the National Bureau of Investigation (NBI) and
the Department of Justice (DOJ) did not establish even a “potential liability”
of the Bank;
5.
the Bank had
investigated the subject matters of the instant administrative complaint in
October 2011 (without informing the complainant to present his evidence during
the alleged in-house investigation);
6.
respondent Xxx Xxx
submitted to the Bank the same documents he had submitted to the NBI and the
DOJ;
7.
the Bank had
conducted a spot audit and it found no anomalies (“all transactions were in
order”;
8.
it was a case
of the complainant’s words versus Xxx’s words;
9.
the Bank felt
it was best to leave the matter to the “competent investigating body” (NBI and
DOJ);
10.
the Bank admits
it did not reply to all the demand
letters/administrative complaint filed by the complainant before it,
claiming that its officer Xxx was not guilty, anyway;
11.
it was
complainant’s fault that he trusted and involved Xxx in the Estafa transactions
as his banker; and
12.the complainant had no right to teach the Bank how
it should conduct its internal investigation.
Incidentally, the Bank,
et. al. did not attach to their Consolidated Answer authentic copies of
credible documentary proofs in support its generic claim that it had conducted
an alleged spot audit of the subject transactions of xxx and that it had conducted
an alleged internal investigation on the matter and found xxx to be innocent of
any administrative/ethical violations, i.e.:
1.
the alleged
Audit Report;
2.
the Internal Office
Order of the President of the Bank or the Board Resolution of the Bank
commanding the Office of the Chief Internal Auditor of the Bank to conduct the alleged
Spot Audit;
3.
the Memorandum
of Transmittal to the President and other concerned Management officials of the
Bank of official copies of the alleged Audit Report signed by the Internal
Auditors and noted by the Chief Internal Auditor of the Bank;
4.
the Office
Order or Board Resolution noting, approving, modifying, or simply acknowledging
the alleged Audit Report;
5.
the Memos or
Notices of Hearings issued by the Investigating Board or Panel created by the
Management or the Board of the Bank addressed to Xxx and all other internal
officials and staff as resource persons (e.g., Auditors, Branch Accountant, et.
al.) to attend the Scheduled Administrative Hearings called by the Bank as part
of its alleged investigation;
6.
the Memo or
Explanations and other relevant pleadings filed by Xxx before the Investigating
Board or Panel of the Bank;
7.
the Memos or
Explanations filed by the Branch Accountant and other concerned officials and
staff of the Branch and the Head Office as witnesses or resources persons that
could give light to the Investigating Board or Panel of the Bank;
8.
the Minutes of
Meetings or Hearings of the Investigating Board or Panel of the Bank, duly
signed by the hearing officers thereof, by the respondent Xxx, by the witnesses
or resource persons, and by the secretariat of the Investigating Board of Panel
of the Bank;
9.
the Incidental
Orders of the Investigating Board or Panel of the Bank issued by it in the
course of its alleged investigation;
10.
the Final
Investigation Report of the Investigating Board or Panel of the Bank;
11.
the Final
Decision or Order or Resolution of the Management or of the Board of the Bank
intelligently and honestly discussing the facts and the laws applicable to the
alleged administrative case and acquitting Xxx of any administrative or ethical
liabilities; and
12.the Informative Report of the Bank to the Supervision
and Examination Department and/or other concerned Departments or Offices of the
Bangko Sentral ng Pilipinas (BSP) on the above matters.
What the Bank, et. al.
are saying before the BSP now is this:
“TRUST US, BSP.
WE HAD INVESTIGATED IT. XXX IS CLEAN. WE DID NOT HAVE TO NOTIFY THE COMPLAINANT
TO PARTICIPATE AND PRESENT HIS OWN EVIDENCE. HE HAS NO RIGHT TO TELL US WHAT TO
DO. TRUST US, BSP. WE ARE BANKERS, LIKE YOU. WE ARE ETHICAL AND
PROFESSIONAL.”
We beg to
disagree. We do not and cannot
trust the respondents Bank, et. al., in light of its past actions and behavior
as an institution.
It was precisely the
reason why we had to go up to the BSP, invoking its Legal Charter, to cleanse
the sacred Banking Industry of unethical, unprofessional, dishonest and corrupt
bankers, if the BSP wishes itself to be true and faithful to its constitutional
and legal mandate and mission.
IN RE: Xxx’s SWORN ANSWER
XXX’s responsive
pleading does not contain specific admissions and denials.
It merely repeated the
previous pleadings that he had filed before the National Bureau of Investigation
(NBI) and the Department of Justice (DOJ), in relation to the criminal
complaint for Estafa, etc. that the complainant (and his wife and son) had
filed against Xxx and his cohorts. The DOJ complaint is still pending (i.e., on appeal before the Office of the
Secretary of Justice).
COMMON DISCUSSION
It is noteworthy to
stress the ultimate facts alleged in the instant administrative complaint,
thus:
1.
“On xxx, 2011,
I filed, together with my wife Xxx and son Xxx, a criminal complaint for
SYNDICATED ESTAFA against XXX, his wife xxx, and others (namely: xxx, xxx, xxx, and xxx).
xxx, and xxx, xxx, xxx, and xxx were members of the board of directors of xxx
INC., led by xxx, a close friend of Xxx and his wife xxx.”
2.
“Exchanges of
pleadings were made before the NBI agent (Mr.
xxx, CPA, for the xxx Division) in charge of the case. After the
fact-finding investigation state before the NBI, the said agency referred my
case to the DOJ for formal preliminary investigation. It was handled by Assistant State Prosecutor xxx. The
preliminary investigation of the DOJ had been terminated. The case is waiting
to be resolved by the said department as of this time.”
3.
“xxx,
representing the BANK, had appeared before the NBI, upon notice by the handling
NBI agent, Mr. xxx. During a hearing at the NBI held on xxx, 2011, before xxx, it was agreed that my lawyer, Atty. Manuel Laserna Jr.,
would provide xxx/the Bank with copies of all the pleadings that I had filed
before the NBI as of that time, for the information and appropriate
legal/administrative/disciplinary action/investigation of the Bank.”
4.
“In a letter, dated xxx, 2011, by Atty.
Laserna addressed to xxx, attached as Annex
“B” hereof, which was personally served on him on xxx, 2011, Atty. Laserna
provided xxx with the a copy of the entire record of the said NBI case as of
that time.”
5.
“Because xxx ignored the abovementioned letter and
did not even acknowledged receipt thereof as an act of professionalism and
courtesy expected of a lawyer and an officer of the BANK, my wife Xxx and I
filed a formal/sworn
letter-administrative complaint against XXX before the BANK thru its
PRESIDENT which was dated xxx, 2011
and which was personally served on the PRESIDENT on xxx, 2011.xxx”
6.
“The
aforementioned letter-complaint sought the following reliefs from the President
of the BANK:
X x x.
1. That a Special Board of Special Inquiry be formed soonest by your Bank to
receive the evidence of the parties and to recommend the proper administrative
sanctions to the Board of Directors of your Bank;
2. That, forthwith, the appropriate administrative HEARINGS be scheduled
soonest by the said Board, in the interest of speedy justice;
3. That in the interim a FINANCIAL AND
PERFORMANCE AUDIT of the xxx Branch
of your Bank be soonest conducted by the internal and/or external auditors of
your Bank as part of your Bank’s
investigation in relation to this administrative complaint;
4. That, after due notice and hearings, the
respondent XXX R. XXX be DISMISSED from
the service, with forfeiture of benefits.
FURTHER,
that xxx be instructed to reproduce and
distribute copies of all the documents, annexes and evidence mentioned in
the body hereof, supra, now in his possession to your good self
as the President of the Bank and to the members of the Special Board of
Inquiry, for the record.
FURTHERMORE,
the complainants hereby respectfully pray for
such and other reliefs as may be deemed just and equitable in the premises.
X
x x.”
7.
“The
BANK, its President, xxx, and the other impleaded respondents-Bank officers
IGNORED our abovementioned formal administrative complaint. The President did
not even send us an acknowledgment letter.
8.
“In
a follow-up letter, dated xxx, 2012,
which was addressed and personally delivered to the respondent BANK and its
impleaded officers, xxx, Atty. Laserna prayed:
“WHEREFORE,
we hereby respectfully request that you take prompt and speedy official action on our pending administrative
complaint within 7 days from receipt hereof and that you forthwith issue the
necessary notice of initial hearing for the said purpose so that the said
administrative case could forthwith procedurally
move with some degree of progress without any further delay.
This
is our final follow-up and demand, for the record.
X x x.”
9.
“IT
WAS AGAIN IGNORED BY THE BANK AND ITS IMPLEADED BANK OFFICERS. Not even an
acknowledgment letter was sent to us.”
10.
“In
another follow-up letter, dated xxx, 2012, addressed and mailed to (and duly
received by), via registered mail, the respondent BANK and its impleaded
officers, Atty. Laserna again followed up the status of our administrative
case. He reiterated our readiness to appear in all administrative hearings
before the BANK. He furnished the Bangko Sentral ng Pilipinas with a copy of
the said letter. See a copy of the said letter marked as Annex “E” hereof. The respondents again IGNORED it. They did not
even send us an acknowledgment letter.”
11.
“In
a letter, dated xxx, 2012, Atty. Laserna protested the RAILROADING done by the
BANK, xxx, and the other impleaded Bank officers to save the neck of XXX and to
save the BANK from civil liability in the light of my huge US Dollar
investments which its employee XXX conspired to secure from me as a depositor
and friend. X x x.
I
wish to quote its strong statements against the BANK and its impleaded officers:
“X x x.
This is the first time that we learned
about the alleged proceedings and
decision of your Bank dismissing the
administrative complaint filed in the latter part of 2011 by our client,
Sps. Xxx and Xxx against your xxx Branch Manager, Xxx Xxx, for conflict of
interest and other unethical and unprofessional acts as an officer of your Bank
which violated not only your internal code of ethics but the general banking
laws of the country.
We presume that your Bank was constrained
to write us because the Bangko Sentral ng Pilipinas had earlier informed your
Bank of a Letter-Complaint that we were constrained to file with that BSP
because of the undue delay and inaction of your Bank on the 2011 administrative
complaint that was filed with your Bank by our clients. (See Annex “B”, Letter, dated xxx, 2012, of xxx,
of BSP Office of Special Investigation, addressed to the undersigned counsel
for Sps. Xxx).
It
will be noted that your Bank has not
notified us of any proceedings or hearings in the course of the alleged
investigation/actions taken by your Bank against Xxx Xxx. It did not furnish
us, too, with a copy of the alleged decision of your Bank dismissing the
complaint of our clients. In fine, your Bank has deprived our client of their basic right to be heard and to
present evidence to prove the unworthiness of Xxx Xxx to continue as an
officer in the banking industry.
There
is enough basis to conclude that your Bank has improperly engaged in
unprofessional and unlawful DAMAGE CONTROL, RAILROADING and WHITEWASHING
tactics to save its face and to project a positive public image as a Bank,
notwithstanding the great detriment and injury to truth and justice and to the
rights and interests of our clients that your Bank and your officer Xxx Xxx
have unjustly inflicted upon our clients, as discussed in the administrative
complaint filed with your Bank by our clients in 2011.
In
closing, we hereby vehemently DEMAND
that your Bank promptly provide us, within five (5) days from receipt hereof,
with copies of the alleged:
(a)
DECISION dismissing the complaint of our clients; (b) the MINUTES of all
hearings allegedly conducted by your Bank;
(c)
the REPORT of your Investigating Committee; and
(c)
the xxx BRANCH FINANCIAL AND PERFORMANCE AUDIT REPORT AND xxx BRANCH FRAUD
AUDIT REPORT (re: xxx’s account/s and Xxx Xxx account/s) conducted by your
Bank, if any; and
(d)
other RELEVANT DOCUMENTS in connection with and forming part of the case record
of the said administrative complaint.
Upon expiration of the 5-day period
stated above, we reserve the right to APPEAL the same to the higher authorities
of your Bank or, if we feel that an
in-house appeal within the biased and insincere investigative structures of
your Bank is a useless and pointless exercise and a waste of time, we reserve the right to proceed DIRECTLY to
the proper legal bodies of the BSP/Monetary Board, in the interest of justice
and to cleanse the banking industry of misfit, dishonest and untrustworthy
institutions and officers.
We are furnishing the BSP/Monetary Board
legal officers, whose names are stated infra,
copies hereof to express to them the strong intention and desire of our clients
to seek real and genuine substantive and procedural justice thru the
intercession of the formal legal mechanisms BSP/Monetary Board as mandated upon
them by existing banking and financial laws of the country.
We
hope and pray the BSP/Monetary Board will be true, as we know them to be so, to
their commitment of the rule of law and social justice and to their legal
mandates under existing banking and financial laws to maintain the integrity of
the banking industry in the midst of financial scams that are now spreading in
our country.
X x x.”
12. “IN FINE, I am charging XXX of CONFLICT
OF INTEREST and UNETHICAL ACTS PREJUDICIAL TO THE IMAGE NAD INTEGRITY OF THE
BANKING INDUSTRY by using his position as Branch Manager to solicit huge US
Dollar investments from (US $ xxx) for the benefit of his close friend xxx and
his dubious shell company xxx INC., where XXX’s wife xxx worked as xxx Officer
and later promoted as a Member of the Board of Directors thereof.
XXX used and abused his office to work as
secret financial broker/adviser/agent of xxx and xxx, Inc.
The BANK ignored it, accepted it, and
encouraged it by not holding a formal administrative inquiry, wherein I and my
lawyer could participate as the complainants therein.
Their actions harmed the integrity of the
banking industry, of the XXX Xxx Bank itself and its stockholders and
management, as well as that of the BSP as a regulator of the banking industry.”
RELIEF
WHEREFORE, it is
respectfully prayed that the instant administrative complaint be given due
course and that the respondents be punished for unethical, dishonest,
unprofessional and acts inimical to the Banking Industry.
Las Pinas City, xxx,
2013.
LASERNA CUEVA-MERCADER
LAW OFFICES
Unit 15, Star Arcade.
C.V. Starr Ave.
Philamlife Village, Las
Pinas City 1740
Tel. No. 8725443; Fax
No. 8462539.
X x x.”
