Short Notice for Submitting a Counter-Affidavit to a Prosecutor’s Subpoena on an Unpaid-Loan Case in the Philippines

When a borrower and lender fall out, what starts as a “simple unpaid loan” can morph into a criminal complaint—most commonly estafa (Art. 315, Revised Penal Code) or B.P. Blg. 22 (bouncing checks). If you receive a subpoena from the Office of the City/Provincial Prosecutor requiring you to submit a counter-affidavit, deadlines move fast and mistakes are costly. This guide explains what the subpoena is, the timeline, your options when time is short, how to write and file a counter-affidavit that actually helps, and practical defenses frequently available in loan-dispute prosecutions.

1) What the Prosecutor’s Subpoena Really Is (and Isn’t)

It’s part of a preliminary investigation. The prosecutor is deciding whether there’s probable cause to file criminal charges in court. This is not yet a trial.
It’s not a court subpoena to appear. The usual subpoena in preliminary investigation requires you to submit a counter-affidavit and evidence. Physical appearance is generally not required unless the prosecutor later sets a clarificatory hearing.
It should attach the complaint-affidavit and evidence. You are entitled to see what is alleged against you so you can respond meaningfully.

2) The Clock: Standard Deadlines and Extensions

Base rule: Respondents generally have 10 calendar days from receipt of the subpoena to file a counter-affidavit with supporting documents and to serve copies on the complainant.
Extensions are allowed for good cause, usually once, and typically up to 10 additional calendar days.
If you ignore the subpoena, the prosecutor may resolve the case ex parte. That increases the risk of an information being filed in court without your side on record.

Practical tip for short notice: If you received the subpoena late—or only have a few days left—file a motion (or letter) for extension immediately (same day if possible). Attach proof (e.g., date of actual receipt, travel/health constraints, need to secure bank/phone records). Don’t wait to perfect the affidavit before asking for time.

3) Where “Unpaid Loan” Meets Criminal Law

Many loan disputes are purely civil. But prosecutors often see complaints framed as:

Estafa (Art. 315(2)(a), (2)(d), etc.) — requires deceit or abuse of confidence causing damage. The deceit must exist at the time the money was obtained (e.g., false representation of collateral, identity, or purpose). Mere non-payment or broken promise is not estafa.
B.P. Blg. 22 (Bouncing Checks Law) — punishes the issuance of a check that is dishonored for insufficiency of funds or account closure, with knowledge of insufficient funds and proof of written notice of dishonor and failure to pay within five banking days.

Key distinctions for your theory of the case:

Civil vs. Criminal: If the facts show no initial deceit, argue it’s civil non-payment, not estafa.
B.P. 22 specifics: No check, no notice of dishonor, or payment within five banking days after notice → no offense.
Novation or restructuring: Later agreements to extend or change terms often negate deceit or show absence of criminal intent.

4) Immediate Triage When You’re Short on Time

Compute your deadline (calendar days) from actual receipt.
File for extension today. A short, respectful one-page motion/letter usually suffices.
Start evidence collection now:
- Promissory notes, loan ledgers, receipts, deposit/transfer slips
- Chat/email threads showing negotiations, extensions, partial payments
- Proof you received (or did not receive) notice of dishonor (for B.P. 22)
- Bank certification on account status, fund availability at time of issuance (for B.P. 22)
- IDs and authority documents (if corporations are involved)
Outline your counter-affidavit (see §7) so you can finalize quickly if the extension is denied.

5) Substantive Defense Angles Common in “Unpaid Loan” Cases

A) Estafa

No deceit at inception: Show the loan was bona fide, with terms later breached for non-fraudulent reasons (cash-flow, pandemic disruptions, etc.).
Good-faith belief/absence of intent to defraud: Document efforts to pay, restructure, or secure funds.
Novation: Written extensions, new payment schedules, collateral substitution—these can undermine the criminal storyline.
No damage or causation: If the amount was repaid or substantially reduced, attach receipts and seek dismissal.
Accounting disputes: Complex interest/penalty calculations support the position that the matter is civil.

B) B.P. Blg. 22

No check issued / not for value: If the check was for security only, or never delivered, explain and prove.
No valid notice of dishonor: The complainant must prove written notice of dishonor to you (or authorized recipient). Absence of proper notice is commonly fatal.
Payment within five banking days after notice: Show proof of payment/settlement within the grace period.
No knowledge of insufficient funds: For post-dated checks issued with a reasonable expectation of funding (backed by documents), argue lack of knowledge.

6) Procedure & Formalities That Matter

Form of submission: A counter-affidavit is a sworn written statement responding point-by-point, with attachments (documentary proof; witness affidavits).
Oath/Subscription: Affidavits should be subscribed and sworn before a prosecutor or authorized officer.
Service on the complainant: File with the prosecutor and serve the complainant. Keep proof of service (registry receipt, courier proof, email with acknowledgment if allowed).
Annexes must be labeled and paginated. Refer to them precisely in the text (“Annex ‘A’ – Loan Agreement dated 1 March 2024”).
Non-appearance: You’re not required to appear unless the prosecutor calls a clarificatory hearing.
Confidentiality: Treat personal and financial data carefully. Redact sensitive information that is not material.

7) Counter-Affidavit Structure (Battle-tested Outline)

Title/Caption (Office of the City/Provincial Prosecutor; Parties; NPS No.)
Affiant’s Identity & Capacity (full name, address, ID details; corporate role if any)
Preliminary Statement (you received the subpoena on [date]; you submit this counter-affidavit on time/with granted extension)
Brief Factual Background (chronology of the loan; attach agreements as Annexes)
Point-by-Point Rebuttal
- Deny or explain each material allegation with specific references to Annexes
- For estafa: emphasize absence of deceit at inception; for B.P. 22: address check issuance, notice of dishonor, five-day payment
Affirmative Defenses (civil nature of dispute; novation; payments; lack of notice; lack of criminal intent)
Prayer (dismissal for lack of probable cause)
List of Annexes (complete index)
Jurat (subscription and oath before authorized officer)

Stylistic tips that persuade:

Short paragraphs, numbered; avoid rhetoric; stick to documents.
Use dates and amounts consistently; reconcile totals in a simple annexed computation sheet.
Anticipate the other side: If they’ll say “no payments,” front-load your receipts.

8) Model One-Page Motion/Letter for Extension (Use/Adapt)

Re: People v. [Your Name], NPS No. ______ Motion for Extension to File Counter-Affidavit

Respondent respectfully requests a 10-day extension from [current deadline date] to [new date] to file a counter-affidavit, on the following grounds: (1) subpoena was received on [date], leaving [X] days for preparation; (2) respondent must obtain bank records/receipts and swear affidavits of witnesses; and (3) counsel’s prior settings on [dates]. This request is made in good faith, not for delay.

Respectfully submitted, [Name, signature, contact details] Copy furnished: Complainant/[Counsel], via [mode].

File and serve this immediately, with proof of service attached.

9) Evidence Checklist (Annexes)

Loan agreement / promissory note / collateral documents
Proof of disbursement (transfer/withdrawal slips; acknowledgment receipts)
Payment receipts and bank transfer proofs (with running total)
Chats/emails showing extensions, restructuring, or settlement efforts
For B.P. 22: the check, bank return slip/memo, and notice of dishonor trail (or proof of its absence)
Bank certifications (account status/funds at relevant times)
IDs, authority documents (board resolutions, if a corporation)
Computation sheet reconciling principal, interest, penalty, and payments

10) Consequences After Filing (What to Expect)

With counter-affidavit on record: The prosecutor may (a) dismiss; (b) set clarificatory hearing; or (c) find probable cause and file an information in court.
If information is filed: The court may issue a warrant (or a summons in certain cases). Be ready to post bail promptly if required.
If dismissed: Keep the resolution; it’s your shield against re-filings based on the same facts.

11) Common Pitfalls (Avoid These)

Missing the deadline or filing without proof of service on complainant
Unsworn “counter-affidavit” (it must be under oath)
Attaching screenshots without authentication (identify the sender, date, and context; printouts should be clear)
Arguing fairness instead of elements (prosecutors resolve elements of the offense, not equities)
Conflating civil and criminal remedies (explain precisely why the facts fail to meet the criminal elements)

12) When to Seek Targeted Legal Help—Even on Short Notice

Large amounts or multiple complainants
Corporate signatories on checks or loan papers
Complex payment histories needing a clean reconciliation
Cross-border parties or documents
Prior criminal cases or warrants

Counsel can quickly (a) craft the extension request, (b) triage evidence, (c) tailor your theory (civil vs. criminal), and (d) ensure compliance with filing and service technicalities that often decide outcomes.

13) Quick Action Plan (48-Hour Crunch)

Day 0 (today): File & serve extension; start evidence requests; outline affidavit.
Day 1: Draft counter-affidavit; paginate annexes; prepare jurat; line up witness affidavits.
Day 2: Swear documents; file with the prosecutor; serve complainant; keep stamped/acknowledged copies and service proofs.

14) Final Notes

A prosecutor’s subpoena on an “unpaid loan” is not a judgment; it’s an invitation—and a deadline—to shape the narrative.
Documentary discipline (clean annexes + clear timeline) often makes the difference between dismissal and filing.
When time is short, an immediate extension plus a focused, element-based affidavit is your best play.