Merrill lynch trading brokerage account agreements


The capacity of a foreign corporation to maintain an action in the Philippines against residents thereof, is the principal question in the appellate proceedings at bar. The issue arises from the undisputed facts now to be briefly narrated. Lara and Elisa G. Lara for the recovery of a debt and interest thereon, damages, and attorney's fees. It also defined a "futures contract" as a "contractual commitment to buy and sell merrill lynch trading brokerage account agreements standardized quantity of a particular item at a specified future settlement date and at a price agreed upon, with the purchase or sale being executed on a regulated futures exchange.

Preliminary attachment issued ex parte on December 2,and the defendant spouses were duly served with summons. In that motion —. All funds in this trading program must be placed with Merrill Lynch Futures, Inc.

ML FUTURES filed a Rejoinder alleging it had given the spouses a disclosure statement by which the latter were made aware that the transactions they were agreeing on would take place outside of the Philippines, and that "all funds in the trading program must be placed with Merrill Lynch Futures, Inc.

On January 12,the Trial Court promulgated an Order merrill lynch trading brokerage account agreements the motion to dismiss, directing the dismissal of the case and discharging the writ of preliminary attachment. In its own decision promulgated on November 27,7 the Court of Appeals affirmed the Trial Court's judgment. It declared that the Trial Court had seen "through the charade in the representation of MLPI and the plaintiff that MLPI is only a trading advisor and in fact it is a conduit in the plaintiff's business transactions in the Philippines as a basis for invoking the provisions of Section of the Corporation Code," 8 viz Doing business without a license.

It also declared that the evidence established merrill lynch trading brokerage account agreements plaintiff had in fact been "doing business" in this country in legal contemplation, adverting to Mentholatum v. Definition and scope of this ACT. Here, it submits the following issues for resolution:.

As just stated, the Lara Spouse's motion to dismiss was founded on two 2 grounds: As regards the second ground, i. The other ground for dismissal relied upon, i. Evidence is quite obviously needed in this situation, for it is not to be expected that said ground, or any facts from which its existence may be inferred, will be found in the averments of the complaint.

When such a ground is asserted in a motion to dismiss, the general rule governing evidence on motions applies. The rule is embodied in Section 7, Rule of merrill lynch trading brokerage account agreements Rules of Merrill lynch trading brokerage account agreements.

There was, to be sure, no affidavit or deposition attached to the Lara Spouses' motion to dismiss or thereafter proffered in proof of the averments of their motion. The motion itself was not verified. In fact, its arguments subsumed the genuineness thereof and even adverted to one or two of them. Its objection was centered on the propriety of taking account of those documents as evidence, considering the established principle that no evidence should be received in the resolution of a motion to dismiss based on an alleged failure of the complaint to state a cause of action.

There being otherwise no question respecting the genuineness of the documents, nor of their relevance to at least one of the grounds for dismissal — i. As just pointed out, it was very clear from the outset that the claim of lack of its capacity to sue was being made to rest squarely on the documents annexed thereto, and ML FUTURES had more than ample opportunity to impugn those documents and require their authentication, but did not do so.

To sustain its theory that there should have been identification and authentication, and formal offer, of those documents in the Trial Court pursuant merrill lynch trading brokerage account agreements the rules of evidence would be to give unwarranted importance to technicality and make it prevail over the substance of the issue. These are the factual findings of both the Trial Court and the Court of Appeals. Prescinding from the proposition that factual findings of the Court of Appeals are generally conclusive this Court has been cited to no circumstance of substance to warrant reversal of said Appellate Court's findings or conclusions in this case.

The fact is that ML FUTURES did deal with futures contracts in exchanges in the United States in behalf and for the account of the Lara Spouses, and that on several occasions the latter received account documents and money in connection with those transactions.

In other words, if it be true that during all the time that they were transacting with ML FUTURES, the Laras were fully aware of its lack of license to do business in the Philippines, and in relation to those transactions had made payments to, and received money from it for several years, the question is whether or not the Lara Spouses are now estopped to impugn ML FUTURES' capacity to sue them in the courts of the forum.

The rule is that a party is estopped to challenge the personality of a corporation after having acknowledged the same by merrill lynch trading brokerage account agreements into a contract with it. Alvis, 83 Ala3 Solimited and distinguished in Dudley v. Collier, 87 Ala6 So ; Spinney v. Miller, Iowa86 NWwhere such person has acted as agent for the corporation and has violated his fiduciary obligations as such, and where the statute does not provide that the contract shall be void, but merely fixes a special penalty for violation of the statute.

The doctrine was adopted by this Court as early as in Asia Banking Corporation v. The general rule that in the absence of fraud of person who has contracted or otherwise dealt with an association in such a way as to recognize and in effect admit its legal existence as a corporate body is thereby estopped to deny its corporate existence in any action leading out of or involving such contract or dealing, unless its existence is attacked for causes which have arisen since making the contract or other dealing relied on as an estoppel and this applies to foreign as well as domestic corporations.

Pua Te Ching, 14 Phil. Those business relations, according to the Laras themselves, spanned a period of seven 7 years; and they evidently found those relations to be of merrill lynch trading brokerage account agreements profitability as warranted their maintaining them for that not insignificant period of time; otherwise, it is reasonably certain that they would have terminated their dealings with ML FUTURES much, much earlier.

Considerations of equity dictate that, at the very least, the issue of whether the Laras are in truth liable to ML FUTURES and if so in what amount, and whether they were so far aware of the absence of the requisite licenses on the part of ML FUTURES and its Philippine correspondent, MLPI, as to be estopped from alleging that fact as defense to such liability, should be ventilated and adjudicated on the merits by the proper trial court.

Q and forthwith conduct a hearing to adjudicate the issues set out in the preceding paragraph on the merits. Q and assigned to Branch 84, presided over by Merrill lynch trading brokerage account agreements. Union Insurance Society of Canton, Ltd. Merrill lynch trading brokerage account agreements persons having an interest in the subject of the action and in obtaining the relief demanded shall be joined as plaintiffs.

All persons who claim an interest in the controversy adverse to the plaintiff or who are necessary to a complete determination or settlement of the questions involved therein shall be joined as defendants. SEEalsoMoran, op. Ortega, supra merrill lynch trading brokerage account agreements, holding inter alia that a plaintiff has no legal capacity to sue when he does not have the character or representation he claims, which is a matter of evidence.

Steamship 'Pompey,' et al. They then filed a motion to dismiss dated December 18, on the grounds that: In that motion — a it drew attention to paragraph 4 of its complaint, admitted by defendants, that the latter "have been actively trading in futures contracts. It declared that the Trial Court had seen "through the charade in the representation of MLPI and the plaintiff that MLPI is only a trading advisor and in fact it is a conduit in the plaintiff's business transactions in the Philippines as a basis for invoking the provisions of Section of the Corporation Code," 8 viz.: Here, it submits the following issues for resolution: Padilla, Regalado and Nocon, JJ.

Footnotes 1 The case was docketed as Civil Case No.

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