BIGNAY EX–IM PHILIPPINES, INC., Petitioner, v. UNION BANK OF THE PHILIPPINES,Respondent.
UNION BANK OF THE PHILIPPINES, Petitioner, v. BIGNAY EX–IM PHILIPPINES, INC., Respondent.
The gross negligence of the seller in defending its title to the property subject matter of the sale – thereby contravening the express undertaking under the deed of sale to protect its title against the claims of third persons resulting in the buyer’s eviction from the property – amounts to bad faith, and the buyer is entitled to the remedies afforded under Article 1555 of the Civil Code.
Before us are consolidated Petitions for Review on Certiorari1 assailing the August 25, 2005 Decision2 of the Court of Appeals (CA) in CA–G.R. CV No. 67788 as well as its February 10, 2006 Resolution3 denying the parties’ respective motions for reconsideration.
In 1984, Alfonso de Leon (Alfonso) mortgaged in favor of Union Bank of the Philippines (Union Bank) real property situated at Esteban Abada, Loyola Heights, Quezon City, which was registered in his and his wife Rosario’s name and covered by Transfer Certificate of Title (TCT) No. 286130 (TCT 286130).
The property was foreclosed and sold at auction to Union Bank. After the redemption period expired, the bank consolidated its ownership, whereupon TCT 362405 was issued in its name in 1987.
In 1988, Rosario filed against Alfonso and Union Bank, Civil Case No. Q–52702 for annulment of the 1984 mortgage, claiming that Alfonso mortgaged the property without her consent, and for reconveyance.
The property is the subject of a pending litigation between Rosario de Leon and Union Bank for nullification of the foreclosure before the Regional Trial Court of Quezon City. Should this offer be approved by your management, we suggest that instead of the usual conditional sale, a deed of absolute sale be executed to document the transaction in our favor subject to a mortgage in favor of the bank to secure the balance.
On December 27, 1989, Bignay mortgaged the property to Union Bank, presumably to secure a loan obtained from the latter.
Sale and mortgage by and between Union Bank and Bignay Ex–Im Phil. Inc. on December 27, 1989 over the subject conjugal property as annotated on T.C.T. No. 362405 (Exh. O).
Further, the Court hereby declares plaintiff Rosario T. de Leon the owner still of the undivided ONE HALF (1/2) of the subject property covered by T.C.T. No. 286130.
The order dated February 2, 1988 granting a writ of possession in favor of Union Bank is hereby SET ASIDE and QUASHED.
Defendant Alfonso de Leon, Jr. is hereby ordered to pay his co–defendant Union Bank of the Philippines the sum of his P1M loan with interest from the time the same was extended to him which is hereby charged against his other undivided share of ONE HALF (½) of the subject property with T.C.T. No. 286130.
No damages is [sic], however, adjudicated against defendant Union Bank of the Philippines there being no substantial evidence that it is in complicity with defendant Alfonso de Leon, Jr. in the presentation of the forged signature of his wife plaintiff on the Special Power of Attorney (Exh. M).
Without cost, except for the professional fee, if any, for the examination of the forged signature (Exh. M–1) which shall be paid by defendant Alfonso de Leon, Jr.
Meanwhile, as a result of the December 12, 1991 Decision in Civil Case No. Q–52702, Bignay was evicted from the property; by then, it had demolished the existing structure on the lot and begun construction of a new building.
had authorized all of Robles’s acts relative to the sale.
Union Bank interposed a Motion to Dismiss19 grounded on lack of or failure to state a cause of action, claiming that it made no warranties in favor of Bignay when it sold the property to the latter on December 20, 1989. The trial court deferred the resolution of the motion on finding that the ground relied upon did not appear to be indubitable. Union Bank thus filed its Answer Ad Cautelam,20 where it alleged that Bignay was not an innocent purchaser for value, knowing the condition of the property as evidenced by Siy’s September 6, 1989 letter–proposal to purchase the same. It interposed a counterclaim as well, grounded on two promissory notes signed by Siy in favor of the bank – 1) Promissory Note No. 90–1446 dated December 20, 1990 for the amount of P1.5 million payable on demand with annual interest of 33%, and 2) Promissory Note No. 91–0286 dated February 26, 1991 for the amount of P2 million payable on demand with annual interest of 30% – which resulted in outstanding liabilities, inclusive of interest and penalties, in the total amount of more than P10.4 million as of December 20, 1996.
Evidence on Union Bank’s counterclaim was likewise received by the trial court.
WHEREFORE, decision is hereby rendered ordering the defendant to pay plaintiff the sum of Four Million ( P4,000,000.00) Pesos representing the cost of the land and Twenty Million ( P20,000,000.00) Pesos representing the value of the building constructed on the subject land, and the costs of this suit.
The counterclaim interposed by defendant is hereby dismissed without prejudice.
The trial court found that Union Bank’s Senior Vice President, Robles, maintained a secret alliance and relationship of trust with Bignay’s Siy, whereby Robles would look out for desirable properties from the bank’s asset inventory, recommend them to Siy, then facilitate the negotiation, sale and documentation for her. In return, he would receive a 3% commission from Siy, or some other benefit; in fact, Siy made him an incorporator and director of one of her corporations, IGAPC. The trial court believed Siy’s claim that she signed papers in blank and left them with Robles in order to facilitate the negotiation and purchase of bank properties which they both considered to be cheap and viable. In this connection, the trial court concluded that it was Robles – and not Siy – who prepared the September 6, 1989 letter–proposal on a piece of paper signed in blank by Siy, and that even though the pending Civil Case No. Q–52702 was mentioned in the letter–proposal, Siy in fact had no knowledge thereof. This is proved by the fact that she proceeded to construct a costly building on the property; if Siy knew of the pending Civil Case No. Q–52702, it is highly doubtful that she would do so.
(5) The damages and interests, and ornamental expenses, if the sale was made in bad faith.
Thus, it held that Bignay was entitled to the return of the value of the property ( P4 million), as well as the cost of the building erected thereon ( P20 million), since Union Bank acted in bad faith. At the same time, the trial court held that the bank’s counterclaim was not at all connected with Bignay’s Complaint, which makes it a permissive counterclaim for which the docket fees should accordingly be paid. Since the bank did not pay the docket fees, the trial court held that it did not acquire jurisdiction over its counterclaim; thus, it dismissed the same.
WHEREFORE, the instant Appeal is PARTLY GRANTED. Judgment is hereby rendered ordering defendant–appellant to pay plaintiff–appellee the sum of P4,000,000.00 representing the cost of the land and P20,000,000.00 representing the value of the building constructed on the subject land.
On the Counterclaim, judgment is rendered ordering plaintiff–appellee to pay defendant–appellant the principal amount of P1,500,000.00 under Promissory Note No. 90–1446 dated December 18, 1990, plus the stipulated interests and stipulated penalty charges from date of maturity of the loan or from June 6, 1991 until its full payment and also to pay the principal amount of P2,000,000.00 under Promissory Note No. 90–0286 dated February 25, 1991, plus the stipulated interests and stipulated penalty charges from date of maturity of the loan or from August 26, 1991 until full payment thereof.
Applying Articles 1548 and 1549 of the Civil Code,28 the CA held that Union Bank is liable pursuant to its commitment under the December 20, 1989 deed of sale to defend the title to the property against the claims of third parties. It shared the trial court’s opinion that the bank was guilty of negligence in the handling and prosecution of Civil Case No. Q–52702, for which reason it should be made answerable, since it lost its title to the whole property when it could have protected its right to Alfonso’s share therein considering that the Decision in Civil Case No. Q–52702 merely awarded Rosario’s conjugal share. In other words, the CA intimated that if Union Bank exercised prudence, it could have maintained at least its rights and title to Alfonso’s one–half share in the property, and the trial court’s Decision completely nullifying the Alfonso–Union Bank mortgage, the bank’s new title TCT 362405, and the Union Bank–Bignay sale could have been avoided.
The CA added that the declaration contained in the September 6, 1989 letter–proposal to the effect that Siy knew about the pending Civil Case No. Q–52702 cannot bind Bignay because the proposal was supposedly prepared and signed by Siy in her personal capacity, and not for and in behalf of Bignay. It further affirmed the trial court’s view that it was Robles – and not Siy – who prepared the said letter–proposal on a piece of paper which she signed in blank and left with Robles to facilitate her transactions with Union Bank.
Regarding the bank’s counterclaim, the CA held that Union Bank timely paid the docket fees therefor – amounting to P32,940.00 – at the time it filed its Answer Ad Cautelam on November 4, 1994, as shown by Official Receipt Nos. 4272579 and 4271965 to such effect and the rubberstamped mark on the face of the answer itself. It added that since the trial court received the bank’s evidence on the counterclaim during trial, it should have made a ruling thereon.
Bignay filed its Motion for Partial Reconsideration29 questioning the appellate court’s ruling on Union Bank’s counterclaim. On the other hand, Union Bank in its Motion for Reconsideration30 took exception to the CA’s application of Articles 1548 and 1549 of the Civil Code, as well as its finding that the bank was negligent in the handling and prosecution of Civil Case No. Q–52702.
On February 10, 2006, the CA issued the second assailed Resolution denying the parties’ respective motions for reconsideration.
Thus, the present Petitions were filed. G.R. No. 171590 was initiated by Bignay, while G.R. No. 171598 was filed by Union Bank. In a June 21, 2006 Resolution31 of the Court, both Petitions were ordered consolidated.
IN A PERMISSIVE COUNTERCLAIM, WHEN SHOULD THE DOCKET FEES BE PAID TO ENABLE THE TRIAL COURT TO ACQUIRE JURISDICTION OVER THE CASE?
G.R. No. 171590. As petitioner in G.R. No. 171590, Bignay registers its doubts as to whether Union Bank indeed paid the docket fees on its permissive counterclaim, arguing that if the bank indeed paid the docket fees, the trial court would have so held in its March 21, 2000 Decision; instead, it specifically declared therein that the docket fees on the counterclaim remained unpaid at that point in time. In other words, Bignay appears to insinuate that there was an irregularity surrounding the bank’s alleged payment of the docket fees on its counterclaim. It adds that since Union Bank is guilty of negligence and bad faith in transacting with Bignay, it should be penalized through the proper dismissal of its counterclaim; the Court should instead require Union Bank to prosecute its claims in a separate action.
Bignay thus prays in its Petition that the assailed dispositions of the CA be modified to the extent that Union Bank’s counterclaim should be denied and dismissed.
In its Comment34 praying that the CA’s ruling on its counterclaim be affirmed, Union Bank insists that it timely paid the docket fees on its counterclaim, arguing that the official receipts proving payment as well as the rubber stamp–mark on the face of its answer may not be overturned by Bignay’s baseless suspicions, claims and insinuations not supported by controverting evidence or proof. It adds that, contrary to Bignay’s assertion, a separate case for the prosecution of its counterclaim is unnecessary since the same may sufficiently be tried in Civil Case No. 94–1129 precisely as a permissive counterclaim; and by allowing its permissive counterclaim, multiplicity of suits is avoided.
In a Reply35 to the bank’s Comment, Bignay among others vehemently insists that at the time of the rendition of the trial court’s judgment in Civil Case No. 94–1129, Union Bank had not yet paid the docket fees on its counterclaim; the bank’s claim that it paid the docket fees when it filed its Answer Ad Cautelam is absolutely questionable. If indeed the bank paid the docket fees, then it should have questioned the trial court’s dismissal of its counterclaim in a motion for reconsideration and attached the receipts showing its payment of the fees; yet it did not. Besides, if indeed the fact of payment of docket fees was stamped on the face of the bank’s Answer Ad Cautelam when it filed the same, the trial court should have noticed it, or at least its attention would have been directed to the fact; but it was not. And if indeed the docket fees were paid as early as 1994, it is incredible how Union Bank never informed the trial court of its payment, even after the adverse Decision in the case was rendered. Bignay adds that in a September 12, 2005 letter36 to the Clerk of Court of the Makati City RTC, its counsel inquired into the circumstances surrounding the sudden appearance of official receipts – copies of which were attached to the letter – indicating that Union Bank paid the docket fees on its permissive counterclaim, when it appears that no such payment was in fact made; up to now, however, it has not received any reply from the said office.
G.R. No. 171598. In its Petition in G.R. No. 171598, Union Bank insists that the September 6, 1989 letter–proposal effectively limited its liability for eviction since from said letter it is seen that Bignay knew beforehand of the pendency of Civil Case No. Q–52702. It insists that under the December 20, 1989 deed of sale, it did not make any representations or warranty with respect to the property; thus, the application of Articles 1548 and 1549 of the Civil Code by the CA was erroneous. Thus, the bank seeks a partial reversal of the CA’s disposition – particularly the portion of the Decision which holds it liable to pay Bignay the respective sums of P4 million for the cost of the land, and P20 million for the cost of the building.
In its Comment,37 Bignay claims that in urging the Court to consider the testimony of Robles and Siy’s declaration in the September 6, 1989 letter–proposal, Union Bank is raising questions of fact in its Petition which this Court may not resolve. It likewise reiterates its argument relating to the bank’s counterclaim; only this time, Bignay claims that the official receipts evidencing the bank’s supposed payment of the docket fees were falsified.
The Court finds for Bignay.
Indeed, this Court is convinced – from an examination of the evidence and by the concurring opinions of the courts below – that Bignay purchased the property without knowledge of the pending Civil Case No. Q–52702. Union Bank is therefore answerable for its express undertaking under the December 20, 1989 deed of sale to “defend its title to the Parcel/s of Land with improvement thereon against the claims of any person whatsoever.” By this warranty, Union Bank represented to Bignay that it had title to the property, and by assuming the obligation to defend such title, it promised to do so at least in good faith and with sufficient prudence, if not to the best of its abilities.
Eviction shall take place whenever by a final judgment based on a right prior to the sale or an act imputable to the vendor, the vendee is deprived of the whole or of a part of the thing purchased.40 In case eviction occurs, the vendee shall have the right to demand of the vendor, among others, the return of the value which the thing sold had at the time of the eviction, be it greater or less than the price of the sale; the expenses of the contract, if the vendee has paid them; and the damages and interests, and ornamental expenses, if the sale was made in bad faith.41 There appears to be no dispute as to the value of the building constructed on the property by Bignay; the only issue raised by Union Bank in these Petitions is the propriety of the award of damages, and the amount thereof is not in issue. The award in favor of Bignay of P4 million, or the consideration or cost of the property, and P20 million – the value of the building it erected thereon – is no longer in issue and is thus in order.
More than the above, this Court finds true and credible the trial court’s express declaration that no docket fees have been paid on the bank’s counterclaim; the trial court’s pronouncement enjoys the presumption of regularity. Indeed, the sudden appearance of the receipts supposedly evidencing payment of the docket fees is highly questionable and irregular, and deserves to be thoroughly investigated; the actuations of the bank relative thereto go against the common experience of mankind, if they are not entirely anomalous.
1. The Petition in G.R. No. 171590 is GRANTED. The August 25, 2005 Decision and February 10, 2006 Resolution of the Court of Appeals in CA–G.R. CV No. 67788 are MODIFIED, in that Union Bank of the Philippines’s counterclaim is ordered DISMISSED.
1Rollo, G.R. No. 171590, pp. 9–32; G.R. No. 171598, pp. 66–84.
2 CA rollo, pp. 219–235; penned by Associate Justice Lucenito N. Tagle and concurred in by Associate Justices Martin S. Villarama, Jr. and Bienvenido L. Reyes (now Members of this Court).
4 Records, Vol. I, p. 232.
8 Id. at 35–45; penned by Judge Pedro T. Santiago.
10Rollo, G.R. No. 171590, pp. 37–38.
11 Docketed as CA–G.R. SP No. 31689.
12Rollo, G.R. No. 171590, p. 38.
13 Additional Requisites For Petitions Filed With The Supreme Court And The Court Of Appeals To Prevent Forum Shopping Or Multiple Filing Of Petitions And Complaints.
14Rollo, G.R. No. 171590, p. 38; Records, Vol. II, pp. 371–376.
15 Records, Vol. 1, pp. 243–252.
16Rollo, G.R. No. 171590, pp. 38–39.
17 Records, Vol. I, pp. 1–14.
21Rollo, G.R. No. 171590, p. 57.
25 Records, Vol. II, pp. 492–502; penned by Judge Manuel D. Victorio.
28 Art. 1548. Eviction shall take place whenever by a final judgment based on a right prior to the sale or an act imputable to the vendor, the vendee is deprived of the whole or of a part of the thing purchased.
The vendor shall answer for the eviction even though nothing has been said in the contract on the subject.
The contracting parties, however, may increase, diminish, or suppress this legal obligation of the vendor.
Art. 1549. The vendee need not appeal from the decision in order that the vendor may become liable for eviction.
29 CA rollo, pp. 254–268.
31Rollo, G.R. No. 171590, p. 69.
38Bankard, Inc. v. Dr. Feliciano, 529 Phil. 53, 61 (2006), citing Fores v. Miranda, 105 Phil. 266, 276 (1959).
39Cagungun v. Planters Development Bank, 510 Phil. 51, 63 (2005).
40 CIVIL CODE, Art. 1548.
41 CIVIL CODE, Art. 1555.
42 Records, Vol. II, p. 501.
43People v. De Guzman, G.R. No. 192250, July 11, 2012, 676 SCRA 347, 360.


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Tom Clancy’s Rainbow Six Siege released on Dec 1, 2015. Here we are listing out Tom Clancy’s Rainbow Six Siege secret trophies. It is a tactical shooter from Ubisoft Montreal and published by Ubisoft. It is playable on PC, PS4 and Xbox One. By June 2018, Tom Clancy’s Rainbow Six Siege has more that 35 million registered players. This is counted on all platforms.
Tom Clancy’s Rainbow Six Siege has 7 modes. These are Hostage, Bomb, Secure Area, Tactical Realism, Terrorist Hunt, Situations and Outbreak. The latest DLC released is Operation Para Bellum – Season 2 on June 7, 2018. The game has 15 secret trophies.
Description: Win a match of TDM – Hostage in “Hereford” on Casual/Ranked Multiplayer.
Description: Win a match of TDM – Secure Area in “Clubhouse” on Casual/Ranked Multiplayer.
Description: Defend the Meeting Room in “Plane” on Casual/Ranked Multiplayer or Terrorist Hunt.
Description: Destroy 5 drones in Casual/Ranked Multiplayer.
Description: Collect and save 5000 Renown.
Description: Breach and rappel through a window in “Consulate” in Casual/Ranked Multiplayer or Terrorist Hunt.
Description: Breach a Floor or Ceiling in “House” on Casual/Ranked Multiplayer or Terrorist Hunt.
Description: Kill an Attacker inside a Barbed Wire in Casual/Ranked Multiplayer.
Description: Reinforce 2 breakable walls in “Bank” on Casual/Ranked Multiplayer or Terrorist Hunt.
Description: Kill an enemy with a Breach Charge in Casual/Ranked Multiplayer.
Description: Destroy a Reinforced Wall with the Thermite Charge in Casual/Ranked Multiplayer.
Description: Win 1 match without losing a single round in Ranked Multiplayer.
Description: Find the Objective in TDM – Secure Area within 20 seconds in Casual/Ranked Multiplayer.
Description: Kill 10 enemies with Nitro Cell in Casual/Ranked Multiplayer.
That’s the complete list of Tom Clancy’s Rainbow Six Siege secret trophies list.

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The present general conditions of sale apply to the sales contract relating to any purchase of products (hereinafter “Products”) executed through the e-commerce website www.broozyofficial.com (hereinafter the “Site”) by users qualifying as “Consumers” pursuant to article 1.5 below.
The use of the services by the User through the Site is exclusively governed by the provisions of these conditions (hereinafter referred to as the “Conditions”). The Conditions are made available to the User on the Site and can be stored and reproduced. These conditions govern purchases made on the www.broozyofficial.com site, in accordance with the provisions of Part III, Title III, Chapter I, of the Consumer Code, Legislative Decree n. 206/2005, amended by Legislative Decree n. 21/2014 and by Legislative Decree 70/2003 concerning electronic commerce.
1.1 BROOZY by Perilli Luca Lorenzo, with registered office in Via Attilio Momigliano n. 8, 67051 Avezzano (AQ) (hereinafter, and for brevity, “Broozy”), operating through an online platform (www.broozyofficial.com; hereinafter, and for brevity, “the portal”) has as its corporate purpose the sale and promotion of the sale of products (hereinafter, and for the sake of brevity, “products”) of companies (hereinafter, and for brevity, “the Partner”) to third parties (hereinafter, and for brevity, ” i / the Customer / Customer “).
1.2 With these general conditions of sale, Broozy sells and the Customer purchases remotely the tangible movable property indicated and offered for sale on the portal. The contract is concluded exclusively through the internet, through the access of the Customer to the portal and the realization of a purchase order according to the procedure provided by the site itself and by these Terms and Conditions.
1.3 The customer undertakes to read these general conditions of sale before proceeding with the confirmation of his order, in particular the pre-contractual information provided by Broozy and to accept them by affixing a flag in the indicated box.
1.4 In the e-mail confirming the order, the Customer will receive a copy of these general conditions of sale, as required by art. 51 paragraph 1 of Legislative Decree 206/2005, amended by Legislative Decree 21/2014.
1.5 Purchases of Products made through the Website will see the Seller as the party and the person who purchases one or more Products for purposes not related to their business, commercial, craft or professional activity, as a buyer (hereinafter the “Consumer”). “And, together with the Seller, hereinafter collectively also referred to as the” Parties “.
1.6 All the contents of the Site are protected by copyright and the relative copyright are the property of Broozy. The Site may not be reproduced, either in whole or in part, transferred by electronic or conventional means, modified, linked and used, in particular for commercial purposes, without the prior written consent of Broozy.
1.7 Any communication by the Consumer connected and / or related to the purchase of the Products – including any reports, complaints, requests concerning the purchase and / or delivery of the Products, the exercise of the right of withdrawal, etc. – must be sent to the Seller at the addresses and in the manner indicated on the Website www.broozyofficial.com.
1.8 Each purchase is governed by the general conditions of sale in the version that will be published on the Site at the time of transmission of the order by the Consumer. The Consumer who accesses the Site to make purchases is required, before sending the order, to carefully read these General Conditions which have been made available on the Site and which can be consulted at any time by the Consumer.
1.9 The Site is dedicated to retail sales and as such is intended for the exclusive use of Consumers. Individuals who are not consumers are requested not to execute purchase orders. If one or more sales are made to a subject that cannot be qualified as a Consumer, these general sales conditions will apply, but notwithstanding the provisions of the same: a) the buyer will not be entitled to the right of withdrawal referred to in the Article 8; b) the purchaser will not be able to benefit from the guarantee on the Products indicated in Article 9; c) the purchaser will not be recognized any other protections provided here in favor of the Consumer, which reflect or comply with mandatory provisions of the law; d) the sales contract concluded between the Seller and the purchaser will be governed by Italian law, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods – 1980 Vienna Convention.
1.10 Simultaneously with the transmission of the purchase order, the Consumer accepts that the confirmation of the information relating to the order placed and the present general conditions of sale are sent to him by e-mail to the address stated by him during registration on the Site or during the purchasing process.
1.11 In order to make purchases through the Site, the Consumer must have the legal age (18 years) and the legal capacity to act, which the Consumer declares to possess.
1.12 Any costs for connecting to the Website via Internet, including telephone charges, according to the rates applied by the operator selected by the Consumer himself, are the sole responsibility of the Consumer.
2.1. The Products are sold with the characteristics described on the Site, in particular in the relative descriptive sheet, and according to the general sales conditions published on the Site at the time the order is sent by the Consumer, with the exclusion of any other condition or term.
2.2. The Seller reserves the right to change these general conditions of sale at any time, at its discretion, without the need to provide any notice to users of the Site. Any changes made will be effective from the date of publication on the Site and will apply only to sales concluded as of that date.
2.3. Prices, Products for sale on the Site and / or their characteristics are subject to change without notice. Therefore, before sending the purchase order, the Consumer is asked to check the final sale price.
2.4. The visual representation of the Products on the Site, where available, normally corresponds to the photographic image accompanying the description. It is understood that the image of the Products themselves has the sole purpose of presenting them for sale and may not be fully representative of its features and quality but may differ in color and size. In the event of a difference between the image and the written product sheet, the description of the product sheet always prevails.
3.1 The customer before the conclusion of the purchase contract, takes a look at the characteristics of the goods that are illustrated in the individual product data sheets at the time the customer chooses the product.
3.3 Prior to the publication of the Proposal on its Broozy Website, it verifies the existence and actual operation of the Partner when registering the Partner company on the site.
3.4 Broozy is also liable to the Client in the event of failure to identify the Partner, as well as in the case of failure or non-diligent conduct of the checks. Broozy also responds, in accordance with the law, in all cases in which it has not used professional diligence in the provision of its services.
Each offer has an availability determined by the Partner company, which will be specified to the Customer through the Website. This availability can be changed during the course of the offer by the Partner company.
5.2 Likewise, and unless otherwise specified in the individual proposal, when the same has as its object a product the delivery costs are not included in the price.
5.1 The sales contract will be concluded only if Broozy has successfully recorded the payment by the Customer. In the event that the payment fails at first (eg due to non-existence of the bank account indicated due to lack of coverage, incorrect credit card number or credit card limit), the contract will not be considered valid.
5.2 Once the contract has been concluded, a copy of the order and the applicable conditions will be kept by Broozy in their computer archives.
6.2 The amounts to be debited can be blocked already at the end of the purchase process, even if the actual charge occurs at a later time.
6.3 The Customer will be required to notify Broozy of any abnormal or not due charge, via email to broozyofficial.com as soon as he has become aware of it, so as to allow Broozy to carry out the appropriate checks.
6.5 If the description on the Site is incorrect: in some rare cases the Partners may make mistakes. If we notice an error, we may contact the Customer to change or cancel the order.
6.7. In the event of partial use of the service, the reimbursement may be in proportion to the service enjoyed by the Customer.
6.8 Refunds are always made directly on the same card used for the purchase. It is not in any way foreseen that Broozy will make a bank transfer or credit the amount of the reimbursement to a different card / bank account or / registered to others.
· 15 working days to be able to carry out the necessary checks with reference to the request made by the Customer (for example: check shipping status, Partner contact for failed or non-compliant service delivery, involvement of the Commercial Area or other useful Business Areas to verify and manage the problem encountered). This time period is to be understood as Broozy’s maximum management time.
· 5 working days foreseen for the administrative management of the case if the refund request is accepted.
The 5 days are calculated starting from the date of acceptance of the reimbursement procedure; this time period is to be understood as Broozy’s maximum management time; Furthermore, it will be necessary to wait for the specific banking times to have visibility of the crediting, usually from 7 to 30 days, depending on the conditions of the reference Credit Institution. For purchases made through the PayPal circuit, there are shorter deadlines than those of credit institutions.
6.10 Broozy has no power to intervene with regards to the crediting times which are at the discretion of the relevant Banking Institute and PayPal.
7.1 The Customer who has purchased products through the portal has the right to withdraw from the contract concluded Broozy without any reason and without having to incur costs other than that of returning the goods, within 14 days from the date of receipt of the goods.
7.2 The Customer may withdraw by sending Broozy any explicit declaration containing the decision to withdraw from the contract or, alternatively, to send the standard withdrawal form referred to in Annex I, Part B, Legislative Decree 21/2014. In any case, the burden of proof relating to the successful exercise of the right of withdrawal rests with the Customer.
7.3 In case of exercise of the right of withdrawal, the Customer is required to return the goods within 14 days from the day on which he communicated to Broozy his intention to withdraw from the contract pursuant to art. 57 of Legislative Decree 206/2005. The goods must be returned or returned to the address of the partner that will be provided by Broozy.
7.4 The goods must be returned intact, in the original packaging, complete in all its parts and accompanied by the relative tax documentation. Without prejudice to the right to verify compliance with the above, Broozy will reimburse the amount of the products covered by the withdrawal, including shipping costs, within 14 days. As required by art. 56, paragraph 3 of Legislative Decree 206/2005, amended by Legislative Decree 21/2014, Broozy can suspend the reimbursement until receipt of the goods or until the Client has demonstrated that he has actually returned the goods. Broozy will make the refund using the same payment method chosen by the Customer during the purchase, unless the Customer and Broozy have expressly agreed otherwise and on condition that the Customer does not incur any costs as a result of the refund. Broozy will not be required to reimburse the additional costs if the Customer has expressly chosen a different type of delivery from the less expensive type offered by Broozy itself.
7.5 For the exercise of the right of withdrawal it is not required that the goods to be returned are insured against theft and accidental damage caused by transport. However, since the risk inherent in the return of the goods rests with the buyer, Broozy invites the buyer who intends to exercise the right of withdrawal to ensure, at his own expense, the shipment for the value indicated in the order confirmation e-mail of purchase.
7.6 According to the art. 59 of the Consumer Code, the right of withdrawal is excluded in the event that the sale relates to products made to specifications or clearly personalized or that are liable to deteriorate or expire rapidly. Without prejudice to the foregoing, Broozy offers users the possibility of being reimbursed for the price paid for an unrecognized product, even if included in the category of products for which the right of withdrawal is not provided, under the following conditions: – the user must send a communication within 4 days of receipt of the goods to the address indicated on the website www.broozyofficial.com: – the reasons why the product was not appreciated; – the desire to take advantage of the “Satisfied or Reimbursed” policy.
8.1 Broozy has the obligation to deliver to the customer products that comply with the sales contract. It is assumed that the products comply with the contract if, where relevant, the following circumstances exist: a) they are suitable for the use to which products of the same type are normally used; b) comply with the description given and have the quality of the product that has been presented to the Customer as a sample or model; c) present the usual qualities and performance of a product of the same type, which the Customer can reasonably expect, taking into account the nature of the goods and, where appropriate, public statements on the specific characteristics of the goods made in this regard by the seller, from manufacturer or his agent or representative, particularly in advertising or labeling; d) they are also suitable for the particular use requested by the Customer and that was brought to their knowledge by the time of the conclusion of the contract and that Broozy has also accepted for conclusive facts.
8.2 In the event of receipt of products that do not comply with the orders, the Customer has the right to restore the cost of the product by repairing or replacing the product without charge. The Customer can exercise this right if the defect occurs within two years from the delivery of the goods and reports the defect within two months from the discovery.
8.3 Broozy is liable to the Customer solely for the lack of conformity of the products (except, in any case, the possibility of Broozy to act in recourse against the Partner); in the event of damage of any kind caused by defective or unsafe products, the Customer must act directly against the Partner to whom the product is referred, in accordance with the provisions of articles 102 and following of Legislative Decree 205/2006.
9.1 Without prejudice to the limitations relating to the content of the Proposal and the use of the distinctive signs of the Partners, Broozy is the holder of all rights relating to the graphic and conceptual content of the Website as well as the distinctive signs made visible in it.
9.2 It is therefore forbidden to reproduce, even partially, the content and graphics of the Website, as well as distinctive signs made visible in it.
The relationships between Broozy and Customers of the Website, including Registered Customers and those who have performed transactions through the Website, are governed by the conditions of use published on the Website, as appropriate , at the time of registration or registration, while each transaction is governed by the conditions of use published on the Website at the time of purchase by the Registered Customer.
11.1 These General Conditions are subject to Italian law.
11.2 Any dispute that does not find an amicable solution will be subject to the exclusive jurisdiction of the Court of the place of residence or domicile of the Customer, if located in the territory of the Italian State.
11.3 In any case, it is possible to optionally resort to mediation procedures pursuant to Legislative Decree 28/2010, for the resolution of any disputes arising from the interpretation and execution of these terms and conditions of sale.
12.1 Broozy adopts highly ethical standards and respects your privacy. Unless required by law from the corresponding jurisdictions, and except for the transmission to the Partner company of your name and telephone number and possibly postal address – in order to complete the delivery of the order – we will not disclose your personal data to third parties without your consent. However, we reserve the right to disclose your personal data to our employees and those of the group of our affiliated companies and our agents and trusted representatives who, with our consent, have access to such information and who need to access it with the sole purpose of performing their duties on our behalf (including customer service and internal surveying companies), all so that you can enjoy an ever better service.
12.2 Broozy is the data controller of the personal data communicated by the Customers at the time of registration and / or registration.
12.3 The personal data communicated by the Customers are processed to satisfy the requests of the Customers themselves (registration, registration and purchase of the products or services) and in any case for the sending, subject to the express acceptance of the customer, of the periodic Newsletter to e-mail address indicated at the time of registration or registration.
12.4 The provision of personal data by the Customer is purely voluntary, and is a prerequisite, depending on the case, for registration, registration or execution of transactions through the website.
12.5 The aforementioned data are processed both electronically and electronically, with methods and tools aimed at guaranteeing maximum security and confidentiality and are made accessible only to Broozy personnel duly appointed to the processing.
12.6 The personal data communicated by the Customers will in no case be disclosed, but may be communicated – for the same purposes for which the collection is made – to third parties belonging to the following categories: · entrusted with the activities of shipping, delivery and return of the products purchased ; · Business partners, if they handle the shipment to the Customer of the items purchased by them or if they need to send receipts and / or invoices in order to offer the service requested by the Customer; · Subjects that provide services for the management of Broozy’s information system and telecommunications networks; · Companies that perform collection and payment services using credit cards; · Subjects that carry out operations of control, revision and certification of the activities carried out by Broozy also in the interest of the Customers; · Accountants, for accounting and tax purposes; · Consultants or other subjects that provide related services. Customers may contact Broozy to enforce the rights recognized in favor of those affected by the art. 7 of Legislative Decree no. 196/03.
In particular, each Customer may: (i) obtain confirmation of the existence or not of personal data concerning him and have it communicated in an intelligible form; (ii) know the origin of the data, the purposes of the processing and its methods, as well as the logic applied to the processing carried out using electronic means; (iii) request the updating, rectification or – if interested – the integration of data concerning him; (iv) obtain the cancellation, transformation into anonymous form or blocking of any data processed in violation of the law, as well as opposing, for legitimate reasons, the processing; (v) oppose any processing aimed at sending advertising material, direct sales, carrying out market research and commercial communication.
12.7 Broozy adopts every standard relating to the management of privacy in compliance with the provisions of the EU regulation 679/2016 GDPR.
13.1. The Site indicates the availability of the Products and the delivery times of the same; however, this information is to be considered purely indicative and not binding for the Seller. Some Products may not be available for delivery on certain days of the week; therefore, the Consumer is invited to check any restrictions on the delivery of these Products in the relative description, before proceeding with the purchase.
13.2. The Seller undertakes to do everything in its power to comply with the delivery times indicated on the Site and chosen by the Consumer. The Seller cannot therefore be held responsible for any loss or damage suffered by the Consumer due to delays in the delivery of the Products, unless such delay is attributable to fraud or the Seller’s fault. In case of non-execution of the order by the Seller, due to the unavailability, even temporary, of the Product, the Seller will provide written notice to the Consumer and will refund any amounts already paid by the Consumer for payment of the Product pursuant to the following par. 13.3.
13.3. The shipment of the Products ordered by the Consumer will take place in the mode selected by the Consumer, among those available and indicated on the Site at the time the order is sent. The Consumer undertakes to promptly check, and in the shortest possible time, that the delivery includes all and only the Products purchased and to promptly inform the Seller of any defect of the Products received or of their differences with respect to the order made, according to the procedure referred to in the following art. 9 of these general sales conditions; in default the products will be considered accepted. If the packaging or wrapping of the Products ordered by the Consumer should arrive at destination clearly damaged, the Consumer is obliged (i) to accept the delivery “with reservation” noting the “reserve” on the delivery note or, alternatively (ii ) refuse delivery by the carrier / shipper.
14.1. As regards any damage caused by defects in the Products, the provisions of European Directive 85/374 / EEC and Italian Legislative Decree n. 206/2005 (Consumer Code). The Seller, in the capacity of distributor of the products through the Site, is released from any responsibility, none excluded and / or excepted, indicating the name of the relevant Product manufacturer.
15.1. Although the Seller takes measures to protect personal data against their possible loss, falsification, manipulation and improper use by third parties, due to the characteristics and technical limitations related to the protection of electronic communications via Internet, the Seller cannot guarantee that the information or data displayed by the Consumer on the Site, even after the Consumer has authenticated (login), are not accessible or viewable by unauthorized third parties.
15.2. The Seller, with regard to data relating to payments by credit card, uses the services of the company Stripe which adopts technological systems designed to ensure the highest levels of reliability, security, protection and confidentiality in the transmission of information via the web.
6.1. The Seller will not be liable in the event of total or partial non-fulfillment of the obligations borne by him in this contract if such failure is caused by unforeseeable events and / or natural events beyond his reasonable control, including, but not limited to, , catastrophic natural events, acts of terrorism, wars, popular uprisings, lack of electricity, general strike of public and / or private workers, strike and / or restrictions on the viability of couriers and air connections.
17.1 Unless otherwise specified, the software necessary to provide our services, made available or used by our website, and the copyright of the contents (including copyright), information and material on our site are of property of Broozy.
17.2 To the extent permitted by law, these terms and conditions, as well as the provision of our services, will be regulated and interpreted in accordance with Italian law and any dispute arising from these terms, the general conditions and our services will be referred exclusively to the courts of competence.
17.3 The original text in Italian of these Terms and Conditions may have been translated into other languages. The translated version is unofficial and for illustrative purposes only, therefore without legal value. In the event of disputes or inconsistencies or discrepancies between the Italian text and the translations in the other languages of these Terms and Conditions, the Italian text will prevail and be the final version. The English text is available on our website (by selecting the English language) or will be sent upon written request.
17.4 In the event that any of the clauses of these Terms and Conditions is not valid, loses validity, is or becomes non-binding, the Customer will continue to comply with all the other clauses set forth herein. In this case we will replace the aforementioned clause with a clause that is valid and binding, which has an effect that is as similar as possible to the one replaced and that you undertake to accept in respect of the contents and purposes of these Terms and Conditions.
17.5 Broozy at its discretion may at any time suspend or cancel the registration on the site of a Client or a Partner.
17.6 Any agreements between the parties prior to the conclusion of the contract, additions or modifications will be considered integral parts of the contract between the parties, provided that Broozy has expressly accepted them in writing. No verbal agreement between the parties will be considered valid and binding.
17.7 Broozy reserves the right to unilaterally modify these conditions.
17.8 Broozy will communicate to the User (Customers and Partners) by e-mail or notice in its personal Area, with a notice of at least 30 (thirty) days, any modification of these General Conditions, with the warning that such changes will be considered accepted by the User except that the latter, within the term of 15 (fifteen) days from receipt of the aforementioned communication from the latter, does not exercise his right of withdrawal providing for himself the cancellation of the personal page the will to withdraw from the relationship . In the absence of withdrawal by the User, such modifications will therefore be deemed accepted by the latter.

matches:
art. 51
art. 57
art. 56
art. 59
art. 7
art. 9


text:
The article deals with approaches, principles, directions and mechanisms, concerning construction and effective introduction of strategy and programs of development of Ukrainian transport complex. Programs of regional development of the country are analysed, thus the attention is concentrated on the most important questions and problems connected first of all, with levelling of essential disproportions in the development of transport networks, and as a consequence of this process, a security status of the state, level of national output and standards of living in the county.
Key words: transport complex, development strategy, transport infrastructure.
УДК 338.47+330.522 ІЛЬ ЧЄНКО С. В.
Запропоновано підходи, визначено принципи, напрями та механізми щодо побудови та ефективного впровадження стратегій та програм розвитку транспортного комплексу України. Проаналізовано програми розвитку регіонів країни, увагу сконцентровано на найбільш важливих питаннях та проблемах, пов'язаних, у першу чергу, з нівелюванням суттєвих диспропорцій у розвитку транспортних мереж, а також, що є наслідком цього процесу, станом безпеки держави, рівня національного виробництва та якості життя населення.
Ключові слова: транспортний комплекс, стратегії розвитку, транспортна інфраструктура.
УДК 338.47+330.522 ИЛЬ ЧЄНКО С. В.
Предложены подходы, определены принципы, направления и механизмы относительно построения и эффективного внедрения стратегий и программ развития транспортного комплекса Украины. Проанализированы программы развития регионов страны, внимание сконцентрировано на наиболее важных вопросах и проблемах, связанных, в первую очередь, с нивелированием существенных диспропорций в развитии транспортных сетей, а также, что является следствием этого процесса, состоянием безопасности государства, уровня национального производства и качества жизни населения.
Ключевые слова: транспортный комплекс, стратегии развития, транспортная инфраструктура.
qualitative updating. Several important actions in this direction have been carried out already, for the maintenance of effective use of the international transport corridors in new conditions, it is important to reach the maximum coordination of actions of all participants in this system.
Realisation of actions in this direction occurs both on the national , and regional level. Scientists and experts of transport branch [2 - 6] were engaged in rationalisation and optimisation processes. Implementation of regional Programs of development [7 - 9] in which one of the key factors is modernisation of the existing and building of a new transport infrastructure, is the major component in the economy and and the key factor of rational, and effective use of essential and favourable geostrategic potential.
Works of many Ukrainian scientists and experienced transport executives - Vinnikov V. V., Kotlubay M. I., Kotlubay A. M., Makhurenko G. S., Nikulin S. G., Primachev N. T., V. Chekalovets which in different years have introduced their experience and knowledge in the improvement of transport complex of Ukraine have conducted research in this field.
Complexity and scale of the problems connected with modernisation of transport system management, leads to the necessity of a complex solution of the problem of balanced transport system with multimodal transport development as basic element of internal potential development of the state. Maintenance of these processes should be carried out through Programs of national transport system development and regional programs of development in this direction. Therefore the aim of the research is to work out recommendations and methodical approach to the implementation of the above-mentioned programs and development strategy.
Formation of adequate system for the balanced dynamic development of the country is one of the basic administrative functions of the state policy. The key factor of effective realisation of this development is optimisation of spatial structure of the economy on the principles of rational use of available resource potential (natural, industrial, scientific and technical, human, financial) and advantages of geopolitical position.
Formation of effective state policy in the field of transport needs an all-round substantiation of priority directions and ways of achievement of the dynamic, balanced social and economic development of Ukraine, increase of the population living standards, maintenance of the social standards guaranteed by the state for each citizen .
First of all there is a requirement to increase in number and improve the technical condition of all types of transport, service quality, maintenance of profitability, comfort and safety of passengers and cargoes transportations by development of a road network and transport system, the greatest possible coverage by motor transport of all settlements, development of port potential of cargo handling, system of aviation flights, including small distances flights, upgrading of a transport infrastructure as a whole.
insufficient updating of all types of transport and road sector, discrepancy of their technical condition and current problems.
low level of transport process information and information interaction of transport with other branches of economy.
ineffective use of the state geopolitical position and its transport communications opportunity for the international transit of cargoes across the territory of Ukraine.
availability of all population levels and enterprises of all forms of ownership.
implementation of safety control, quality, optimization of organizational structure, improvement of administrative services quality and improvement of work organization systems.
One of the global tasks demanding a solution is essential territorial distinction in the level of a transport infrastructure provision, a number of available transport different regions. Therefore those projects which contain both the ways of global strategic tasks solution, and short-term and medium-term ones are of great importance. These programmes should include particular measures not only regarding a cargo transportation, but also regarding passengers transportation, i.e. directed at realization of separate positions in the development and improvement of a shuttle mini-bus network and inforastructure, a network of bus stations and terminals, quality of passengers transportation, improvements in economic, innovative and personnel policies, transportation safety and ecologic practice implementation. Thus it is necessary to appoint particular executives, responsible persons, who will set schedule times, sources, volumes and terms of financing.
One of the most important economic characteristics is profitability. Effective economic functioning of carriers and bus stations is probably possible if that structure and income level optimization, and also structure and expenses level of different kinds of resources within the established regulations is provided on their part, and tariff and compensatory policy optimization is provided on the transportation provider part. It is clear that investments into the technological transportation process differ substantially depending on types of routes and movements.
For example, the city and the overwhelming majority of suburban movement routes investments at the expense of the means received from the service of these routes, even provided that there is high level of indemnification of losses are practically impossible. Therefore, the basic investment recoupment source (including credit or leasing conditions) is the investment component, i.e. a part of profit from work city and suburban routes. The important factor of investment activity in these cases is also the target use of depreciation charges which as operational expenditure have a 'virtual' character.
The motor transport tariff policy should ensure fulfilment of motor transport social function, satisfy entrepreneurial interest, ensure motor transport development, stimulate implementation of the newest transportation technologies, use of modern types of vehicles, and also promote solution of particular range of tasks. As a whole the tariff policy is a component of the general economic and social policy which on the one hand, provides free pricing in competitive market sectors, and on the other hand -regulation of services cost .
Taking into account the social function of general use transport, which is generally available for all population groups, the state cost regulation of socially significant motor transport services is completely grounded. Proceeding from the aforesaid, interregional transportation tariffs are one of the most important factors, which provide constant carriers functioning, stability of their economic situation, transportation quality and safety, and also investment attraction. On the other hand, it is necessary to consider that the tariff level is an important social factor, and while defining it, it is necessary to take into consideration population real solvency. It follows from this that an objective solution of a tariff level problem is probably exceptionally possible provided that there is an effective tariff policy.
Gradual transition to economically grounded tariffs (fares) for each of the routes in all modes of movement, and also for bus station services has to be a tariff policy purpose . Tariffs which will provide economically grounded expenses compensation (within operating regulations) and profit formation in accordance with the co-ordinated profitability level (if necessary - taking into account the investment component) should be understood as economically grounded tariffs.
cant ones), and also the fares, taking into account an effective budgetary sources use of indemnification, should be considered as a strategic task.
Realization of such strategy will provide creation of a necessary investment attraction and, accordingly, a competition in this market segment that, in turn, will provide volumes and quality growth of passenger transport services.
It is necessary to notice that research results have shown that according to the profitability indicators the routes which work in different movement modes, differ considerably. For example, almost all city bus routes are unprofitable. In addition, the losses are caused by both preferential transportations, and the established tariffs level. The overwhelming majority of suburban bus routes are also unprofitable, but approximately 50 - 60 % of this unpro-fitability is caused by only preferential transportations. On the other hand, the overwhelming majority of coach service is profitable, but profitability level fluctuation for them makes from 5 to 30 %. Bus transportations in 'express' and 'shuttle mini bus' modes are almost completely profitable, but profitability level fluctuation for them also makes 10 - 40 %.
Investments (and their recoupment) in coach service auto-transportations technological process, and also at all 'express' and 'shuttle mini bus' modes, in most cases can be carried out at the expense of the means received from these routes service.
The investments structure is also an important factor. The practice is that almost all investment means of the majority of carriers go exceptionally on rolling stock renewal. Infrastructural investments are first of all very important in development, modernization and reconstruction of carriers and bus stations facilities for the effective functioning of passenger transportations system.
While working out tactical steps, emphasis should be put on the compensatory policy. It should provide a complex solution of the problem of financing necessary indemnifications for preferential transportation of citizens whose list of categories is established by the corresponding acts and the Law of Ukraine About the State budget of Ukraine' for the corresponding year for passenger transportations. It concerns unprofitable adjustable tariffs indemnification, creation of conditions for comprehensive development and improvement of the quality of socially significant motor transport services, and also distribution, maintenance and use of the budgetary funds for indemnification.
Legislative and regulatory basis of indemnifications realisation is the Budgetary code of Ukraine, Laws of Ukraine 'About motor transport', Cabinet Ministers of Ukraine regulations from 12/25/1996 № 1548 'About the establishment of executive powers of city councils concerning (tariffs) price control' with the changes and additions, from 04.03.2002 № 256 'About the order of local budgets expenditure financing approval for measures on realisation of population social protection government programmes at the expense of subventions from the state budget' with the changes from 29.01.2003 № 117 'About the Uniform state automated register of people who have the right for privileges', from 29.01.2003 № 139 'About the approval of the Order of carrying out of competition on passengers transportations on a general use bus route.' Ministry of statistics of Ukraine order from 27.05.1996 № 150 'About the Instruction approval as for passengers account order who are transported by public transport along the routes', which has been registered in the Ministry of Justice of Ukraine 30.05.1996 №258/1283, with the changes and additions, other legislative and regulating acts which regulate the relations in the corresponding sphere.
The basic source of preferential transportations indemnification is the subvention means from the State budget of Ukraine, received by corresponding cities and areas. Distribution of these means is carried out by local authorities taking into account total amounts of the means provided for indemnification of a shuttle mini bus network of socially significant motor transport services, preferential transportations planned volumes of corresponding citizens categories, and the previous calculations of indemnification volumes for cities and city districts, and the region as a whole.
The scientific-technical, technological and information support issue, without which it is impossible to achieve a necessary degree of population and production transport service quality is an important point. Working out and realisation of corresponding programmes and measures have to be carried out with wide involvement of specialised research, scientific and other competent organisations and specialists.
One of the most important directions of an innovative policy is the creation of ASDMAC - the Automated Systems of Dispatcher's Management, Account and Control on passenger transport. These systems should be subordinated to transportation organization, that is to the executive committees of corresponding city councils (as for city passenger transportations), and to the economic authority of transport and communication of public administration (as for suburban and coach service interregional passenger transportations). In future, all-round GPS-technologies use is necessary for strengthening of the control over realisation of suburban and coach service passenger transportations.
Among all indicators which characterise development and improvement of the passenger auto transportations organisation system and increase of its quality, issues of safety have the highest priority. Ecological safety ensuring, and decrease in environmental pollution level has to be also one of the most important directions for prospective development of transport system.
Carrying out of the above-mentioned tasks with the account of the presented recommendations, will give the chance to provide dynamic balanced development of a country transport complex as a whole, to bring our standards of living nearer to the European ones, and to create conditions for economic activity strengthening in all country regions, which will favour gradual softening of interregional disproportions, reduction of depressive territories formation risks, and will protect the society from considerable additional expenses.
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of the market of transport services, Institute of Market Problems and Economic & Ecological Research (29, Franzusckiy bulvar, Оdеssа, 6504, e-mail: CV-2010@yandex.ua).
Ільченко Світлана Віталіївна - канд. екон. наук, старший науковий співробітник відділу ринку транспортних послуг Інституту проблем, ринку та економіко-екологічних досліджень НАН України (6504, м. Одеса, Французький бульвар, 29, e-mail: CV-2010@yandex.ua).
Ильченко Светлана Виталиевна - канд. экон. наук, старший научный сотрудник отдела рынка транспортных услуг Института проблем, рынка и экономико-экологических исследований НАН Украины (6504, г. Одесса, Французский бульвар, 29, e-mail: CV-2010@yandex.ua).
Рецензент докт. екон. наук, професор Лепейко Т. І.

matches: V. V. V. V. V. V.


UNITED STATES OF AMERICA, Plaintiff, v. JERRY KAREEM TATUM, Defendant.
Before the Court is defendant Jerry Kareem Tatum's pro se Motion to Establish F.R.P. Payment Plan [DE 48]. The government, through a Response to Defendant's Motion to Establish F.R.P. Payment Plan, has opposed the motion [DE 51]. For the following reasons, defendant's Motion to Establish F.R.P. Payment Plan is DENIED.
On March 28, 2003, Mr. Tatum pled guilty to fifteen counts of interfering with commerce by robbery and aiding and abetting in violation of 18 U.S.C. § 1951-52 and two counts of brandishing a firearm during a crime of violence and aiding and abetting in violation of 18 U.S.C. § 924(c). [DE 1]. At sentencing, the Court ordered defendant to pay restitution in the amount of $35,959.20 and an assessment of $1,700.00. [DE 35]. The Court ordered defendant's special assessment due in full immediately but established no restitution payment schedule. Id.
Defendant is incarcerated at the Federal Correctional Institution in Estill, South Carolina. Defendant began participating in the Bureau of Prisons Financial Responsibility Program (F.R.P.) in September 2014. [DE 51-1]. He participated until June 7, 2015, at which time he was placed in "refuse status" for failing to make scheduled payments. [DE 51-2]. Defendant began participating again on July 13, 2015. [DE 51-3]. At that time, defendant agreed to set aside $26.00 a month. Id.
On July 30, 2015, defendant filed the instant motion requesting to establish an F.R.P. payment plan of $25.00 quarterly payments. [DE 48].
The Fourth Circuit has held that the provisions of the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. §§ 3663A and 3664, should be strictly construed and modifications permitted only where provided for in the statute. See United States v. Roper, 462 F.3d 336, 338-39 (4th Cir. 2006). The MVRA states that "[a] sentence that imposes an order of restitution is a final judgment" except for in a narrow set of circumstances, which the statute lists. 18 U.S.C. § 3664(o). By specifically including the few circumstances in which modification is permitted, the statute forecloses any other means of modifying an order of restitution. See Roper, 462 F.3d at 338-39 (quoting Raleigh Gaston R.R. Co. v. Reid, 80 U.S. 269, 270 (1872) ("[w]hen a statute limits a thing to be done in a particular mode, it includes a negative of any other mode.")).
Here, defendant has neither cited nor briefed any statute or rule permitting a modification of the Court's judgment. Additionally, upon examination of the possible reasons for modifying an order of restitution in 18 U.S.C. § 3664(o), none appear to apply to the instant case.
Moreover, there is already a system in place within the Bureau of Prisons for addressing complaints about the administration of restitution payments. Defendant must pursue his claims administratively before seeking redress in this Court. See McKart v. United States, 395 U.S. 185, 193 (1969) ("The doctrine provides 'that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.'") (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 (1938)). Title 28 C.F.R. § 542.10, et seq., sets out the Bureau of Prisons Administrative Remedy Program, which establishes procedures for reviewing complaints relating to conditions of confinement. This process includes informal complaints, formal complaints, and multiple levels of appeals. 28 C.F.R. §542.13-18. Failure to exhaust administrative remedies is excusable only upon a showing of cause and prejudice. McClung v. Shearin, 90 Fed. Appx. 444, 445 (4th Cir. Feb. 6, 2004).
Here, there is no evidence defendant has sought relief from—much less exhausted—administrative remedies. There is also no evidence that defendant's failure to exhaust his administrative remedies is because following the procedure would be futile. Thus, Defendant has no valid excuse for failing to exhaust his administrative remedies.
Based on the foregoing information, defendant's Motion to Establish F.R.P. Payment Plan [DE 48] is DENIED. SO ORDERED, this 24 day of September, 2015.