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The long arm of crime

(Article published in the June 14, 2006 issue of Manila Standard Today)

          The long arm of the law is an old story.  The remake is the long arm of crime.  But, whereas the old story ends with the criminal getting caught and punished and with the victims, no matter how long a process, receiving  restitution, the revised tale closes with the victims being left to fight each other in long and expensive litigation and with the criminal having his just dessert, i.e. feasting and then enjoying the fruits of his crime.

Sometime between the 10th  and the 16th of June, 1993, an unidentified person broke into Jose and Ester Dimaculangan’s (not their real names) residence at No. 1234 Balding Parkway Boulevard, Balding, California (not their real residence). Initially, they thought that only Ester’s jewelry box was taken. Later on, they discovered that other items, such as their passports, bank deposit certificates, and identification cards were also stolen.

On 16 August 1993, spouses Dimaculangan opened a joint “and/or” foreign currency time deposit in trust for their sons Pepito and Joselito at a bank at Makati City in the amount of about $55,000 for a term of 182 days or until 14 February 1994, at 2.6 per cent interest per annum.  They listed as their address, No. 48 Lone Ranger Street, Dell Village, Metro Manila (not the real address stated in the bank records), where Pepito and his wife, Petra, (not their real names) lived.

The following month the spouses Dimaculangan then went back to the United States where Ester resumed her duties as a nursing aide at the Sierra Madre Day Care Center (not the real name of her place of work) in Balding, California.

On or about 10 November 1993, the spouses Dimaculangan received an overseas text message from their daughter-in-law Petra telling them that she received a call from the branch manager of the bank where they made their dollar deposit earlier described asking them to pick up the identification card that Ester left that same day at the bank when she pre-terminated the account.  Since Ester had not left the United States since her return last September, much less had she ever gone to the bank to pre-terminate her “and/or” dollar account, she immediately called the bank with the frantic denial that she was the one who had withdrawn her deposit.

Investigations of the bank disclosed that in the morning of 10 November 1993, someone claiming to be Ester Dimaculangan went to the bank and, after presenting Ester’s stolen passport and identification cards, tried to pre-terminate the account.  The impostor did not present the original of the certificate of deposit and so, following standard bank policy, she was required to, and she did, sign a release and waiver.  The form required notarization, but this was dispensed with since there was no notary present at the bank premises at that time. 

The bank manager compared the signature of the impostor on the documents required to be executed in cases of pre-termination of deposits with the genuine signature of Ester on file and noticed a discrepancy in just one letter.  She also noticed that the lady who presented herself as Ester did not resemble the pictures in the identification cards.  Nevertheless, she authorized the pre-termination and the consequent withdrawal because both the person present and the person in the pictures had a mole in the same place on the face.  Besides, the passport was clearly genuine.

This was, we must remember, 1993.  Though medical tourism was not yet in vogue, plastic surgeons have already been plying their lucrative trade of making over faces and whatever else women of means but of less than perfect assets wanted to have made over.  And before “Hello, Garci,” who would have thought one could have two genuine passports?

At any rate, the victims, namely the bank and the Dimaculangans, had a face-off in court.  And, in such a situation where two innocent parties are in legal loggerheads, the court ordinarily rules against party who did not exercise the requisite diligence under the circumstances.

The Supreme Court, when the case went before it, did not deal with the diligence required of the spouses Dimaculangan.  If I may hazard a guess, the Dimaculangans are bound to no more than the diligence of a person living in America who must keep their homes where they keep their valuables secure.  Their doors and windows ought to be locked and reasonably difficult to break into because, yes, Virginia, there are robbers in the United States.  In civil law, that standard is called the diligence of a good father of a family.  From what I know of the many fathers who happily celebrate Father’s day, that is not too difficult  to comply with.

The Supreme Court devoted more time and text to explaining the degree of the diligence required of the bank, leaving no doubt right from the very beginning of its disquisition, as to who was going to win the case.  The standard of diligence imposed by law on banks is, in summary, what is required of a super hero.

Justice Ma. Alicia Austria-Martinez, writing for the court held: “The Court has repeatedly emphasized that, since the banking business is impressed with public interest, of paramount importance thereto is the trust and confidence of the public in general.  Consequently, the highest degree of diligence is expected, and high standards of integrity and performance are even required, of it.  By the nature of its functions, a bank is under obligation to treat the accounts of its depositors with meticulous care, always having in mind the fiduciary nature of their relationship.”

Thus, the ponencia continued: “The Court has held that a bank is ‘bound to know the signatures of its customers; and if it pays a forged check, it must be considered as making the payment out of its own funds, and cannot ordinarily charge the amount so paid to the account of the depositor whose name was forged.’  Such principle equally applies here.”  

The bank did not seek to deny that it had some failing but it, however, sought to downgrade its severity.  But the Supreme Court condemnation was relentless, saying the bank “cannot label its negligence as mere mistake or human error.    Banks handle daily transactions involving millions of pesos.  By the very nature of their works the degree of responsibility, care and trustworthiness expected of their employees and officials is far greater than those of ordinary clerks and employees. Banks are expected to exercise the highest degree of diligence in the selection and supervision of their employees.”

At the end of the day, the bank was made to pay the Dimaculangans the principal and the stipulated interest, some token moral damages, and some legal interest. 

As for the impostor, nobody appears to have bothered about her.  She is probably somewhere in the world enjoying the US$55,000 or so, waiting for her, or her syndicate’s, or their, next banking transaction.

I have kept the names of the case and the parties to protect them from the further harm that might result should anyone of my few readers recognize them.  But the lessons to be learned I have kept intact.

     Banks are favorite targets of those who would want to dip their fingers into their deep pockets.  One misstep could be very costly since the law holds them to a standard which not even people who occupy positions that could lead this country to ruin are held accountable for.   Making matters worse, the vultures of the local variety have recently been augmented by foreign ones giving the long arm of crime a global reach.