MANILA, Philippines (2nd UPDATE) - The Department of Justice (DOJ) has found probable cause to charge officers of property developer Globe Asiatique Realty Holdings Corp. (GA) for syndicated estafa constituting economic sabotage for "soliciting and paying off special buyers and/or creating ghost borrowers" for the controversial, scandal-ridden Xevera housing project in Mabalacat, Pampanga which resulted in P6.65 billion in losses on the part of state-run Home Development Mutual Fund (HDMF/Pag-ibig Fund).
In a 50-page Review Resolution dated August 10, 2011 by Senior Deputy State Prosecutor Theodore Villanueva, officer-in-charge of the DOJ's Task Force on Business Scam, and approved by Prosecutor General Claro Arellano, those recommended charged for the offense which is penalized under Article 315(2)(a) of the Revised Penal Code, in relation to Section 1 of Presidential Decree No.1689, are: Delfin Lee, GA president; his son Dexter Lee, executive vice-president, chief finance officer, treasurer and board member; Christina Salagan, head of Accounting/Finance Department; Christina Sagun, head of Documentation Department; and Atty. Alex Alvarez of the Pag-ibig Legal Department and manager of the Foreclosure Department.
The panel of prosecutors designated to conduct the preliminary investigation into a complaint filed by Pag-ibig and the National Bureau of Investigation (NBI) -- composed of Senior Assistant State Prosecutor Ma. Emilia Victorio, and Assistant State Prosecutor Bryan Jacinto Cacha, Susan Villanueva, Ddmundo Magpantay and Rohaira Tamano -- recommended the filing of estafa charges against respondents Delfin Lee, Sagun and Salagan; the panel's resolution was upgraded to the present recommended charge as well as the inclusion of respondents Dexter Lee and Alvarez.
The Review Resolution states that all elements of syndicated estafa are present in the case and successfully established by complainants and their witnesses, namely:
- there were false pretenses, fraudulent acts, or fraudulent means employed (e.g. using fictitious name, falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits);
- which false pretenses, fraudulent acts or fraudulent means were made or executed prior to or simultaneously with the commission of the fraud;
- upon which the offended party (HDMF or Pag-ibig Fund) relied on and was, thus, induced to part with its money or property;
- as a result of which, it suffered damage; and
- that the whole crime of estafa was committed by a syndicate consisting of five or more persons formed with the intention of carrying out the unlawful of illegal act, transaction, enterprise or scheme, resulting in the misappropriation of, among others, funds solicited by corporations/associations from the general public.
The complaint alleged that GA was able to obtain the release of more than P7 billion from the Pag-ibig Fund, representing 9,951 accounts, however, upon validation by the state pension fund, some purported buyers/borrowers were not genuine buyers while others were "ghost buyers."
"The fact that GA has employed fictitious buyers to be able to obtain funds from Pag-ibig Fund by way of take-out of the housing loans of its buyers of Xevera housing units has been fully established by witnesses Francisco dela Cruz and Veniza Santos Panem who both referred to the scheme as 'special buyers' arrangement," the resolution read.
The resolution stated that being president of GA, Lee "is liable for the offense as he signed the agreements for and on behalf of the corporation."
"Indeed, by provision of law, Delfin S. Lee is liable for the offense and, as stated above, his act of signing the agreements is enough to indict him for the violation committed by the corporation. For this reason, we are without option but to turn down his defenses, i.e. that he acted in good faith in signing the agreements, and that the corporation has a personality separate and distinct from its officers," the resolution read.
As for Dexter Lee, the resolution said "he had knowledge and/or had direct participation in the aforementioned 'special buyers' scheme" and was named by witnesses as the co-signatory to the cheques issued by GA for Pag-ibig and in favor of the "special buyers."
The resolution stated that Sagun, being the head of the Documentation Department, is responsible for (a) checking if documents submitted by the buyers/borrowers are complete and duly accomplished; and (b) verifying from Pag-ibig whether said buyers/borrowers are indeed Pag-ibig members and with updated contributions.
As for Salagan, the resolution said she is responsible for (a) managing and overseeing the affairs of the Accounting Department, which she heads; (b) reviewing all requests for payment and preparing the corresponding cheques; and (c) ensuring that amortizations are timely remitted to Pag-ibig.
Regarding Alvarez, the resolution stated that that he "knew, participated and consented to the illegal scheme perpetrated by respondents" since he notarized crucial pieces of documents such as buyer's affidavit of income, promissory notes and developer's affidavit.
It was pointed out in the resolution that since August 2010, GA failed to remit to Pag-ibig the monthly amortizations of its borrowers for the Xevera Project.
"Truly, the evidence for the complainant fully established the false pretenses or fraudulent means employed by GA which, undoubtedly, were executed prior to or simultaneously with the commission of the fraud as they were utilized for the purpose of securing and obtaining the funds..."
The complaint against respondents alleged that GA made false representations, submitted falsified documents (such as ID, ITRs, birth certificates, TINs) allegedly manufactured by GA as supporting documents for the loan applications, and paid for the immediate Pag-ibig membership of these fictitious and fraudulent buyers for them to qualify for loans. Pag-ibig claims that in order for GA to induce the mutual fund to release more funds to pay for the housing units supposedly acquired by these individuals, Lee paid the amortizations of the non-existent borrowers in order not to alert Pag-ibig to the scheme.
These acts were found to be the "efficient causes or primary considerations which induced HDMF to release the amount of P6,653,546,000, more or less, to the damage and prejudice of HDMF and/or its members as the said amount is yet to be remitted by GA."
Meantime, the complaint against other respondents Ramon Palma Gil, Lerma Vitug, Tintin Fonclara, Geraldin Fonclara, Revelyn Reyes, Rod Macaspac, Marvin Arevalo, Joan Borbon, Christian Cruz, Rodolfo Malabanan, Nannet Haguiling and John Tungol was dismissed for lack or insufficiency of evidence.
The resolution also recommended a referral of its findings to the Office of the Ombudsman so that an investigation may be initiated for violation of Republic Act No. 3019(Anti-graft and Corrupt Practices Act) against former and present officers of Pag-ibig, namely chief executive officers Atty. Romero Quimbo and Jaime Fabian; senior vice-president(SVP) for operations-Northern Luzon Sector Tessie Gonzales' assistant vice-president for Loan, and now SVP for Housing Operations, Rafael Abano; vice-president for Northern Luzon Atty. Vilma Flores, manager and loans officer of San Fernando, Pampanga Branch.
Pag-ibig: DOJ findings a 'big win' for the public
Sought for comment, Pag-ibig counsel Sandra Coronel said the home mutual fund welcomes the DOJ's findings.
Coronel further said Pag-ibig hopes the resolution will encourage more of GA's victims to come forward and lodge their own complaint against the property developer.
"We are happy with the resolution. We hope na this is going to make the other victims of Globe Asiatique come out and also file cases kasi napapakita ng DOJ na talagang independent minded sila. Despite the pressures ay willing sila na mag-prosecute pag talagang may kaso ng syndicated estafa," she said.
"We hope ma-encourage mga tao mag-file ng mga kaso and hopefully, together, we can finally get rid of this modus ng panloloko sa mga tao. Bahay ang pinag-uusapan dito, naghahanap ng pera ang mga tao at halos lahat ng pinag-ipunan napupunta dun sa wala. This is a very very big win para sa public," she added.
Lee, et al. may still file a motion for reconsideration or petition for review to convince the DOJ to reverse its findings.
Syndicated estafa is a non-bailable offense and punishable with life imprisonment.