decision - government service insurance system€¦ · stocks involved-200 meralco shares e....

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REPUBLIC OF THE PHILIPPINES GOVERNMENT SERVICE INSURANCE SYSTEM

FINANCIAL CENTER, ROXAS BOULEVARD, PASAY CITY 1308

BOARD OF TRUSTEES

IN THE MATTER OF: APPEAL FROM COC RES. NO. 51-2011 DENYING AVAILMENT OF THE 2011 CONDONATION PROGRAM FOR STOCK PURCHASE LOAN (SPL),

AURINO E. FACUN, Petitione~

BOARD CASE No. 003-12

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DECISION

NATURE OF THE CASE

Before this Board is the appeal of Aurino E. Facun (Petitioner) from

the Committee on Claims (COC) Resolution No. 51-2011 dated 13 August

2011, denying Petitioner's availment of the 2011 Condonation Program for

Stock Purchase Loan (SPL).

FACTS OF THE CASE

The Petitioner is a former employee of the Municipal Treasurer's

Office of San Jose, Tarlac.

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GSIS Case No. 003-12 IN THE MATTER OF: APPEAL FROM COC RES. NO. 51-2011 DENYING AVAILMENT OF THE 2011

CONDONATION PROGRAM FOR STOCK PURCHASE LOAN (SPL). Aurlno E. Facun. Petitioner

Page2

On 12 May 1994, Petitioner, was granted a Stock Purchase Loan

(Meralco Shares) amounting to Forty-Eight Thousand Six Hundred Thirty

One Pesos and Twelve Centavos (Php48,631.12) payable in five (5) years.

Details of his loan were as follows: 3

a. Date of Buy Confirmation Slip - August 12, 1994

b. Term/Interest Rate- 5 years at 10% p.a.c.m.4

c. Amortization Period- September 1994 to August 1999

d. Stocks Involved- 200 MERALCO shares

e. Monthly Amortization- P1,033.27

Petitioner failed to pay his loan obligation. Thus, on 28 June 2005,

GSIS sent its First Notice On Past Due Stock Purchase Loan to Petitioner,

demanding payment amounting to Php186, 766.03 as of 30 June 2005.5 The

Statement of Account attached to it showed the following details:

a. Repayments up to June 2005 - P8,182.51

b. Outstanding Balance totaling P186,766.03 composed of the following:

a. Surcharge- P64,616.07

b . Interest- P78,012.35

c. Principal- P44,137 .61

On 12 December 2005, Petitioner, together with a certain jose B.

Puno, filed a petition entitled "In the Matter of Filing Petition for the

Condonation of Interest and Penalties of Stock Purchase Loan By Way of

Granting Amnesty" addressed to then GSIS President and General Manager

3 COC's Answer dated 18 May 2012 . 4 Per annum compounded monthly. 5 Supra at Note 3 .

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GSIS Case No. 003·12 IN THE MAITER OF: APPEAL FROM COC RES. NO. 51-2011 DENYING AVAILMENT OF THE 2011

CONDONATION PROGRAM FOR STOCK PURCHASE LOAN (SPL). Aurino E. Facun, Petitioner

Page3

Winston F. Garcia and copy furnished the GSIS Tarlac Branch. They alleged

that they entered into an agreement with a certain Mr. Victor A. Yap where

they waived all their rights and interests in the stocks purchased in

exchange for the latter's commitment to pay their Stock Purchase Loans

with GSIS. Petitioner and Mr. Puna expressed their willingness to pay the

principal amount indicated in the notice and prayed for the condonation of

all the interests and surcharges on the loan and for the restructuring of the

loan amount. 6

On 5 March 2008, the Board of Trustees (BOT) issued Board

Resolution No. 48, approving the recommendation of the Senior Vice

President (Corporate Service Group) for the implementation of a

condonation program on outstanding service loans declared in default and

restructuring of the remaining balance through the consolidated loan

program. The recommendations were embodied in a Memorandum dated 1

March 2008 (Annexed to Board Resolution No. 48), which included the

following provisions:

B. COVERAGE:

The proposed Condonation and Restructuring of Loans in Default will cover all service oriented loans in default as of December 31, 2007 specifically the following accounts:

• Salary Loans • Enhanced salary loans • Restructured salary loans • Summer-One-Month Salary Loan • Emergency loan assistance • Stock purchase loans7

• Educational assistance loans • Fly Pal Pay Later Plan (FPPLP)

XXX

6 Petition dated 12 December 2005. 7 Emphasis supplied.

XXX XXX

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CONDONATION PROGRAM FOR STOCK PURCHASE LOAN (SPL), Aurlno E. Facun, Petitioner

Page4

IV. Recommendation

Respectfully submitting the recommendation for the reconsideration and approval of the following:

1. Proposed unilateral condonation of penalties and surcharges and interests on service oriented loans declared in default as of December 31, 2007, as follows:

• 100% condonation of penalties and surcharges

• 50% waiver of interests

2. Restructuring of the remaining balance of the loan, after deducting the condoned amounts through the consolidated loan program.

Board Resolution No. 48 was subsequently amended by Board

Resolution No. 97 dated 18 June 2008. Instead of the 50% condonation of

interests on loans in default as of December 31, 2007, B.R. No. 97 provided

for a decrease in interest rates imposed on such loans, from 18% per annum

compounded monthly to 6% per annum compounded monthly.

In 2009, Integrated Loans Membership, Acquired Assets and Accounts

Management System (ILMAAAMS) Advisory No. 05-10-08 was issued which

in part states:

I. Background

II.

This advisory is being issued in compliance with the following directives/Office Order:

• ManCom directive 2009-M-0325-NCR-36/2009-M-0325-VIS-034 dated March 27, 2009 which states that other loans such as Stock Purchase Loan, Fly PAL, Study Now Pay Later and PPD Osteoporosis shall be booked as Due and Demandable with interest of 12%.

• Office Order No 24-09 dated October 22, 2009, No. 21 On the Interest Computation for Accounts Receivables, which states that all service loans declared in default, and therefore, due and demandable, shall be booked as accounts receivable and shall earn an interest rate of 12% per annum compounded monthly and a penalty of 6% per annum compounded monthly" XXX XXX XXX

XXX XXX XXX

III. 1. 2 .



Page5

3. INRU shall determine the outstanding balance of account in default using the following:

Account Osteo Deficit SPL/FPPL/SNPL Cases

Date in Default XXX XXX Six Months after the maturity date of loan or last date of payment whichever is older date

Amount of Principal XXX XXX REMAINING BALANCE of the account if already deducted from a previous claim or benefit but still with collectible GROSS AMOUNT of granted loan if not yet deducted from any processed claim or benefit

Interest Rate XXX 12% per annum compounded monthly

Penalty/Surcharge XXX 6% per annum compounded monthly With condonation of penalty as of December 31, 2007

Date of SOA End of current month Computation of OBAL See See Annex B

AnnexA

On 15 September 2010, the Petitioner retired from service.

On 15 November 2010, Petitioner re-filed his petition for condonation

reiterating his prayer for condonation of all interests and surcharges on his

SPL and his allegation that he already transferred his right over the said

stocks to Mr. Victor Yap. He alleged further that the fact that there were

payments of Php8,182 .51 for the Stock Purchase Loan which did not come

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... GSIS Case No. 003-12

IN THE MATTER OF: APPEAL FROM COC RES. NO. 51-2011 DENYING AVAILMENT OF THE 2011 CONDONATION PROGRAM FOR STOCK PURCHASE LOAN (SPL).

Aurlno E. Fa c un, Petitioner

from the remittances of the Municipal Treasury of San jose Tarlac, his

employer, was sufficient evidence of his waiver of rights on the said stock

purchase.

On 16 December 2010, Petitioner's retirement claim was processed

and the amount of Php339,711.42 8 was deducted from his retirement

benefits as payment for the outstanding balance of his Stock Purchase Loan,

leaving him the amount of Php149,261.29. 9 Mr. Facun's Stock Purchase

Loan account was computed by the Tarlac Field Office based on the

parameters provided under ILMAAAMS Advisory No. 05-10-08, viz:

• condonation on the penalty as of 31 December 2007 • Interest rate-12% per annum compounded monthly • Penalty rate-6%per annum compounded monthly

The computation on Petitioner' s SPL account shows two (2) cut off

dates.

The first cut-off date was on December 31 , 2007, covering the

computation of Petitioner's SPL Account for the period from 1994 to 2007.

Principal p 44, 137.62 Interest 162,229.21 Penalties and Surcharges 811826.1 5 Total Outstanding Balance p 288,192.98 Less: Condoned Amount 811826.15 Balance Forwarded to Final p 206,366.83 SOA

8 The amount is made up of a) Interest and Surcharge - Php295,573.81; b) PrincipalPhp44,137.61 9 COC's Answer dated 18 May 2012.

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The second cut-off date was on 16 December 2010, covering the

computation of Petitioner's SPL Account for the period from 2008 to 2010.

Balance as of December 31, p 206,366.83 2007 (exclusive of condoned surcharges/penalties) Interest 88,896.39 Penalties and Surcharges 44,448.20 Total Outstanding Balance p 339,711.42

In view of the deduction of P339, 711.42 from his retirement proceeds,

Petitioner filed a Supplemental Petition on 28 December 2010, protesting

and seeking relief from the same.10

On 28 April 2011, GSIS subsequently passed Board Resolution No.

111 approving and confirming the Condonation Program for Stock Purchase

Loan Accounts which granted an incentive to delinquent members with

outstanding SPL accounts to settle the said accounts with condonation rates

of 100% for penalties/surcharges and 50% for interests.

On 25 July 2011, Petitioner wrote GSIS expressing his intention to

avail of the 2011 SPL Condonation Program. However, on 13 August 2011,

the Committee on Claims (COC) issued Resolution No. 51-2011 denying the

petition on the ground that the same was contrary to existing policy.

On 6 December 2011, Petitioner filed the instant appeal reiterating

his allegations and praying that he be allowed to avail of the 2011 SPL

Condonation Program. On 4 June 2012, the COC filed its Answer and

10 Supplemental Petit ion dated 28 December 2010.

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· . .. GSIS Case No. 003-12

IN THE MATTER OF: APPEAL FROM COC RES. NO. 51-2011 DENYING AVAILMENT OF THE 2011 CONDONATION PROGRAM FOR STOCK PURCHASE LOAN (SPL).

Aurlno E. Facun, Petitioner PageD

alleged that Petitioner cannot avail of the 2011 Condonation Program

because he had already retired when the condonation program was

implemented and was, therefore, beyond the scope of its coverage.

Moreover, the COC stated that Petitioner's allegation that he had waived

his interest on the shares of stocks, the object of the stock purchase loan,

had no legal effect as far as GSIS was concerned as it never consented to or

approved the same. It expressed, however, that since there was already full

payment of the loan after deduction of its outstanding balance from

Petitioner's retirement benefits, Petitioner already owned the shares of

stock and GSIS must tum over the stock certificates to Petitioner.

On 7 May 2012, Petitioner received the stock certificates and sold the

same for the amount of Php163,554.47 on 27 June 2012. 11

In his Memorandum dated 9 November 2012, Petitioner argued that

although he had already retired when the 2011 SPL Condonation Program

was implemented, his application for condonation should still be considered

since he had filed such application as early as 2005 when he was still in

service.

ISSUE

The issue in this case is whether Petitioner is entitled to avail of the

2011 condonation program for his Stock Purchase Loan.

11 Petitioner's Memorandum.

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CONDONATION PROGRAM FOR STOCK PURCHASE LOAN (SPL).

DISCUSSION

Aurlno E. Facun. Petitioner Page9

At the outset, we note that the COC, in its Resolution No. 51-2011

dated 13 August 2011, denied Aurino Facun's application for condonation

under the 2011 SPL Condonation Program on the ground that at the time it

was implemented, he was no longer a holder of a delinquent Stock Purchase

Loan. Board Resolution No. 111 dated 28 April 2011 in part provides:

RESOLVED, to APPROVE and CONFIRM the Condonation Program for Stock Purchase Loan (SPL) Accounts granting an incentive to delinquent members with outstanding SPL accounts to settle the said accounts on or before 30 June 2011 with condonation of 100% of penalties/surcharges and 50% of the interest.

It is clearly provided that the condonation was intended for delinquent

members with outstanding SPL accounts as of 2011. Petitioner therefore

was not qualified under the 2011 Condonation program since there was

already full payment of his SPL account when he retired in 2010. The

amount of Php 339,711.42, representing the balance of his Stock Purchase

Loan as of 16 December 2010, was already deducted from his retirement

proceeds. Thus, as previously stated, GSIS released the stock certificates to

Petitioner on 07 May 2012, who subsequently sold the same for

Php163,554.47 on 27 june 2012 Y

However, we note that prior to B.R. No. 111 dated 28 April 2011,

there were other condonation programs. In 2008 the following Board

Resolutions were issued:

12 Petitioner's Memorandum.

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A. Board Resolution No. 48 dated 5 March 2008 which provides:

RESOLUTION NO. 48

RESOLVED, to APPROVE the recommendations of the Senior Vice President (Corporate Services Group), for the implementation of a condonation program on outstanding service loans declared in default and restructuring of the remaining balance through consolidated loan program:

1. Proposed unilateral condonation of penalties and surcharges and interests on service oriented loans declared in default as of December 31, 2007, as follows :

• 100% condonation of penalties and surcharges • 50% waiver of interests

2. Restructuring of the remaining balance of the loan, after deducting the condoned amounts through the Consolidated Loan Program.

RESOLVED FURTHER, to DIRECT the Senior Vice President (Corporate Services Group), in coordination with the Vice President (Public Affairs Office) to conduct an information drive regarding this program.

RESOLVED FINALLY, to DIRECT the SVP (CSG) to submit a report to the Board, after six (6) months, as to the impact of this Program, including the financial implication on the Funds of the System.

B. Board Resolution No. 97 dated 18 june 2008- amending Board

Resolution No. 48, viz:

RESOLUTION NO. 97

RESOLVED, to APPROVE the recommendation of the Senior Vice President (Corporate Services Group) to amend Board Resolution No. 48 dated March 5, 2008, specifically on the 50% condonation of computed interests on loans in default as of December 31, 2007, in favor of the decrease in interests imposed on such loans, from 18% per annum compounded monthly to 6% per annum compounded monthly.

As amended, Board Resolution No. 48 dated March 5, 2008 shall now read as follows:

. . . GSIS Case No. 003-12

IN THE MAlTER OF: APPEAL FROM COC RES. NO. 51-2011 DENYING AVAILMENT OF THE 2011 CONDONATION PROGRAM FOR STOCK PURCHASE LOAN (SPL).

RESOLUTION NO. 48

Aurino E. Facun, Petitioner

RESOLVED, to APPROVE the recommendations of the Senior Vice President (Corporate Services Group) for the implementation of a condonation program on outstanding service loans declared in default and restructuring of the remaining balance through consolidated loan program:

1. Proposed unilateral condonation13 of penalties and surcharges and interests on service oriented loans declared in default as of December 31, 2007, as follows:

• 100% condonation of penalties and surcharges • Reduction of interest rates imposed on

loans in default from 18% p.a. compounded monthly to 6% p.a. compounded monthly. (emphasis supplied)

2. Restructuring of the remaining balance of the loan, after deducting the condoned amounts through the Consolidated Loan Program.

XXX XXX XXX

The 01 March 2008 Memorandum of the Senior Vice-President of the

Corporate Services Group, which was approved by and annexed to Board

Resolution No. 48, recommended the unilateral condonation of penalties

and surcharges and interests, which meant that there was no need for the

members to apply in order to avail of the same. The Memorandum also

made clear that Service Oriented Loans include Stock Purchase Loans.

Records reveal, however, that the provisions of the foregoing Board

Resolutions were not applied in the computation of Petitioner's SPL account

balance when he retired in 2010. Instead, Petitioner's balance was

computed using 12% interest rate and 6% surcharge rate with a

condonation on the penalty/surcharges up to 31 December 2007. The same

were the parameters provided under ILMAAAMS Advisory No. 05-10-08

which was issued in 2009.

13 emphasis supplied.

' .... . . . . GSIS Case No. 003-12

IN THE MAlTER OF: APPEAL FROM COC RES. NO. 51-2011 DENYING AVAILMENT OF THE 2011 CONDONATION PROGRAM FOR STOCK PURCHASE LOAN (SPL),

Aurlno E. Facun, Petitioner

Notably, the computation of Petitioner's SPL account was made only

upon the retirement of Petitioner in 2010.

There being no subsequent Board Resolution replacing and repealing

B.R. No. 48, other than amendments introduced by B.R. No. 97, the same

should have been used in the computation of Petitioners SPL account until

his retirement in 2010.

Office Order No 24-09 dated October 22, 2009, the basis of the

parameters (interest rate of 12% per annum compounded monthly and a

penalty of 6% per annum compounded monthly) in ILMAAAMS Advisory No.

05-10-08 cannot prevail over the provisions in B.R. No. 48 (as amended by

B.R. No. 97).

Petitioner is entitled to the Condonation Program under B.R. No. 48,

as his account was in default as of December 31, 2007 and said program

provides for its unilateral application. We therefore rule that Petitioner,

though not entitled to the Condonation Program under Board Resolution

No. 111, is entitled to benefit from condonation rates provided under B.R.

No. 48, as amended by B.R. No. 97.

Thus, pursuant to B.R. No. 48, as amended, Petitioner's SPL account

from 12 August 1994 to 31 December 2007 should be computed using an

interest rate of 6% per annum compounded monthly while the

penalty/surcharges should be condoned. Using the said parameters the

Tarlac Branch office arrived at the following computation:

. '•

Principal Interest


CONDONATION PROGRAM FOR STOCK PURCHASE LOAN (SPL), Aurino E. Facun. Petitioner

p 44,137.62 53,888.80

Penalties and Surcharges 53A73.69 Total Outstanding Balance p 151,500.11 Less: Condoned Amount 53A73.69 Balance Forwarded to Final p 98,026.42 SOA

From 1 January 2008 to 16 December 201014, the interest rate provided in

the original contract (SPL Account) of 10% (per annum compounded

monthly) and 1 % surcharge rate (per month) shall apply. Thus,

Balance as of January 1, 2008 p 98,026.42 (exclusive of condoned surcharges/I>_enalties) Interest 34,131.03 Penalties and Surcharges 40,957.22 Total Outstanding Balance p 173,114.67

The interest and surcharge rates in the original contract are applied

because the original contract remained in force or subsisted. The Guidelines

of B.R. 48 provided in the Memorandum dated 1 March 2008, Part III, C.

thereof provides:

C. Amounts to be Condoned

Members with loans in default eligible under the program will unilaterally enjoy 100% condonation of penalties and surcharges and 50% waiver of interests.

Restructuring of the remaining outstanding balance (net of the 100% condonation of penalties and surcharges and the 50% waiver of interests) will be effected when the delinquent borrower avails of the consolidated loan; thereafter, the terms and conditions of the consoloan program will apply. (emphasis supplied)

14 Adjustments made from 30 December 2014 to 16 December 2014.

. .. GSJS Case No. 003-12

IN THE MAlTER OF: APPEAL FROM COC RES. NO. 51-2011 DENYING AVAILMENT OF THE 2011 CONDONATION PROGRAM FOR STOCK PURCHASE LOAN (SPL),

Amino E. Facun, Petitioner

Clearly, the terms and conditions of the condonation program will

only apply upon the borrower's availment of the consolidated loan. Thus,

absent Petitioner's availment of the consolidated loan, the original terms

and conditions of his SPL Agreement with GSIS still subsisted. The

condonation did not have the effect of extinguishing Petitioner's obligations

under the SPL Agreement. It should however be stressed that the 50%

waiver of interests under the aforequoted guidelines has already been

modified pursuant to Board Resolution No. 97, and instead of waiver, a

reduction of interest rate to 6% was implemented.

Thus, using a manual computation and applying the interest and

surcharge rates in the original contract from 1 january 2008 to 16

December 2010, Petitioner's SPL total outstanding balance should have

been Php 173,114.67 as of 16 December 2010. Considering, however, that

Php 339,711.42 was deducted from Petitioner's retirement benefits, there

was an overpayment on his part in the amount of Php 166,596.75, which

amount should be refunded to the Petitioner.

ACCORDINGLY, the instant petition for availment of the 2011

Condonation Program for SPL is DENIED. The Tarlac Branch Office is,

however, directed to: 1) Recompute petitioner's SPL account balance

applying the condonation rates and provisions of B.R. No. 48, as amended

by B.R. No. 97 on Petitioner's SPL account only until 31 December 2007; 2)

Apply the interest and surcharge rates stated in the original contract from 1

january 2008 until16 December 2010; and 3) Pay the refund immediately.

The Tarlac Branch Office is further directed to submit compliance with

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. . . . GSIS Case No. 003-12

IN THE MATTER OF: APPEAL FROM COC RES. NO. 51-2011 DENYING AVAJLMENT OF THE 2011 CONDONATION PROGRAM FOR STOCK PURCHASE LOAN {SPL),

Aurino E. Facun, Petitioner Page 16

PROSECUTION AND QUASI JUDICIAL CASES DEPARTMENT, LEGAL SERVICES GROUP Government Service Insurance System Financial Center, Pasay City

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GSIS Case No. 003-12 IN THE MATTER OF: APPEAL FROM COC RES. NO. 51·2011 DENYING AVAILMENT OF THE 2011

CONDONATION PROGRAM FOR STOCK PURCHASE LOAN (SPL), Aurino E. Facun, Petitioner

Page 15

this Decision within ten (10) days from release of Petitioner's refund.

SO ORDERED.

Pasay City, __ 2_B_·_AU_G_2_0_M __

ROBE T G. VE'¥'ARA V. ce Chairman

ROMEO if: ALIP

L L. LACSON, JR. Chairman

Trustee Trustee

~ < ~ EUSEA G~G tkvt:-- GERALDINE ~RBERABE-MARTINEZ Truste~~ coz~~ Trustee

Trustee

Copy furnished:

FRANCISCO T. DUQUE III* Trustee

(did not attend)

FROILAN M. BACUNGAN & JUAN M. DESCALZO, JR. Bacungan and Descalzo Law Offices Counsel for Petitioners Rm.302, Phil. Social Science Center Commonwealth Avenue, Diliman, Quezon City

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, ..... . . , . . . GSIS Case No. 003-12

IN THE MATTER OF: APPEAL FROM COC RES. NO. 51-2011 DENYING AVAILMENT OF THE 2011 CONDONATION PROGRAM FOR STOCK PURCHASE LOAN (SPL),

Aurlno E. Facun, Petitioner

CERTIFICATION

I, BERNADETH R. BISOC, Attorney IV of the GSIS Legal Services Group, having been assigned (to draft a Decision in GSIS Board Case No. 003-12 entitled "In The Matter Of: Appeal From COC Res. No. 51-2011 Denying Availment Of The 2011 Condonation Program For Stock Purchase Loan (SPL), Aurino E. Facun, petitioner" hereby certify that the statement of facts herein stated and being presented before this Board is based on the records of the case, the pleadings and other documents submitted by the parties.

This certification is issued in compliance with Board Resolution No. 198-A

adopted on September 15, 2004.

BERNADE Hearing Officer

014.

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u

BOARD MEETING NO. 15 28 AUGUST 2014

Page 15

RESOLUTION NO. 124

WHEREAS, Mr. Aurino E. Facun filed a Petition before the GSIS Board of Trustees, docketed as Board Case No. 003-12, appealing the Resolution dated 13 August 2011 of the GSIS Committee on Claims, .which denied his request to avail of the 2011 Condonation Program for Stock Purchase Loan;

WHEREAS, pursuant to Section 30 of R.A. No. 8291, the GSIS has original and exclusive jurisdiction to settle any dispute arising from the application of the laws administered by the GSIS;

RESOLVED, to APPROVE and CONFIRM the Decision in Board Case No. 003-12, In the Matter of Appeal from CoC Res. No. 51-2011 Denying Availment of the 2011 Condonation Program for Stock Purchase Loan (SPL), Aurino E. Facun, Petitioner, the dispositive portion of which states:

"ACCORDINGLY, the instant petition for availment of the 2011 Condonation Program for SPL is DENIED. The Tarlac Branch Office is, however, directed to: 1) Recompute petitioner's SPL account balance applying the condonation rates and provisions of B.R. No. 48, as amended by B.R. No. 97 on Petitioner's SPL account only until 31 December 2007; 2) Apply the interest and surcharge rates stated in the original contract from 1 January 2008 until 16 December 2010; and 3) Pay the refund immediately.

"The Tarlac Branch Office is further directed to submit compliance with this Decision within ten ( 1 0) days from release of Petitioner's refund.

"SO ORDERED:"

A copy of the Decision in Board Case No. 003-12 is attached and made an integral part of this Resolution.

OFFICIAL cl#r

decision - government service insurance system€¦ · stocks involved-200 meralco shares e....

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