UPSYS DAILY TRADING/UPSYS DAILY TRDING MANAGEMENT OPC/UPSYS DAILY TRDING MANAGEMENT CONSULTANCY

Securities and Exchange Commission COoMMISSION eN BANC Republic of the Phtlippines Department oi Finance

IN THE MATTER OF: UPSYS DAILY TRADING/UPSYS DAILY TRDING MANAGEMENT OPC/UPSYS DAILY TRDING MANAGEMENT CONSULTANCY

SEC CDO CASE NO. 03-23-100 Promulgated: 04 April 2023

ENFORCEMENT AND INVESTOR PROTECTION DEPARTMENT,

Movant.

CEASE AND DESIST ORDER

banks, and from transferring. disposing, or conveying in any other cease and desist from further engaging in activities of selling and/or registration statement is duly filed with and approved by the Securities and Exchange Commission (the "Commission"), and the license to transacting any and all business involving the funds in its depository Misters Michael Reyes Puente {"Mr. Puente"} and June Mendoza Samson salesmen, agents, promoters, uplines, influencers, and any and all persons, conduit entities and subsidiaries (collectively referred to as the offering securities in the form of investment contracts until the requisite offer/sell securities is issued; and (b) prohibiting the UPSYS Group, Mr. DAILY"TRDING MANAGEMENT OPC and UPSYS DAILY TRDING MANAGEMENT CONSULTANCY (hereinafter collectively referred to as the "UPSYS Group"] together with its owner and agent John Rey Baldenas Villarino ("Mr. Villarino"), its single stockholder, director, and president, ("Mr. Samson"] and its operators, directors, officers, representatives, "Agents"} who are claiming and acting for and its behalf, to immediately Villarino, Mr. Contreras, Mr. Puente, and Mr. Samson, and its Agents from Order (CDO) be issued: (a) directing UPSYS DAILY TRADING, UPSYS Mark Uy Contreras ("Mr. Contreras" its nominee and alternate nominee Investor Protection Department (EIPD), praying that a Cease and Desist (the "Motion"] dated 17 March 2023 filed by the Enforcement and This resolves the Motion for Issuance of A Cease and Desist Order1

SE oGO 1 Filed on 20 March 2023. CERTFIEU THDE COPY OF

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manner, any and all assets, properties, real or personal, including bank

interest, claim or participation whatsoever, whether directly or deposits, if any, of which the named persons herein may have any

indirectly, under their custody, without authority from the Commission.

PARTIES

tasked, among others, to investigate motu proprio or upon complaint or implemented, or issued by the Commission, and to seek the issuance of a referral, violations of laws, rules, and regulations administered, Movant, EIPD is one of the Commission's operating departments

Cease and Desist Order (CDO) whenever warranted by the circumstance.2

Commission either as a partnership or corporation. UPSYS Daily Trading is an entity that is not registered with the

Commercial Bldg., Mayor Gil Fernando St., Barangay Santa Elena, Marikina City. Its single stockholder is Mr. Contreras, a resident of San Barangay 100, Pasay City, while his alternate nominee is Mr. Samson, a resident of Poblacion, Pateros. Corporation {UPSYS Daily OPC] having been issued a Certificate of February 2023. Its principal place of business is at Room 3 Maregato Roque, Marikina City. Its designated nominee is Mr. Puente, a resident of Incorporation with SEc Registration No. 2023020086789 on 18 UPSYS Daily Trding Management OPC is a registered One-Person

Trading, its primary purpose is: Based on the Articles of Incorporation ("Aol"]3 of UPSYS Daily

corporations, partnerships and other entities; to provide management and technical advice for commercial, industrial, manufacturing and other kinds of enterprises; and to undertake, carry on, assist or participate in the promotion, organization, management, liquidation or reorganizations or corporations, partnerships and other entities, except the management of funds, securities, portfolio or similar assets of the managed entities or corporations. "To act as managers or managing agency of persons, firms, associations,

investment contracts." (Emphasis supplied) investments/placements from the public neither shall it issue Provided that the corporation shall not solicit, accept or take

2 SEC Office Order No. 512, series of 2013 3 Motion. Annex "I" THE DOCUMENTS ON RECORD CERTIFED TRUE COPY OH SEC OGC

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registered with the DTI under the name of Mr. Villarino. Its principa UPSYS Daily Trding Management Consultancy is an entity

address is located in Barangay Magallanes, Makati City.

RELEVANT FACTS

Beginning January of 2023, the EIPD received email reports/complaints4 from the public on the investment-taking activities of the UPSYS Group, where a number inquired into the legitimacy of these investigation on the transactions and activities of the UPSYS Group for possible violation(s) of the Securities Regulation Code ("SRC"), the administered and implemented by the Commission. entities and their operations. This prompted the EIPD to conduct an Revised Corporation Code (RCC), and other rules and regulations

Group, an investor can invest and earn by buying any of the available gathered online5 from the UPSYS Group's Facehook page, the EIPD was able to confirm that the UPSYS Group is selling/offering unregistered securities, by enticing the public to invest and earn passive income through its investment plans. Specifically, UPSYS Group sells/offers four (4) packages, each of which has a specific rate of return, but all of which matures in three (3) months. Under the investment scheme of the UPSYS packages below: Based on the investigation conducted, and the information

UPSYS 4 UPSYS 2 UPSYS 3 PACKAGE UPSYS 1 150,000.00 CASH OUT P50.000.00 P5,000.00 P500.00 RETURN RATE OF 2.5 3 4% 2 % P6,000.00 P1,500.00 RETURN P125.00 P10.00 DAILY THREE MONTHS RETURN AFTER P540,000.00 F135,000.00 P11,250.00 P900.00

level (direct) recruits, and one percent (1%) uni-level bonus for the second (2nd) to the tenth (10th) level recruits. will also earn a fifty percent (5o%) direct referral bonus for his/her first In addition to the guaranteed returns provided above, an investor

unauthorized sale of unregistered securities, the EIPD submitted in Monitoring Department (CRMD), the Markets and Securities Regulation evidence the Certifications issued by the Company Registration and To support its finding that UPSYS DAILY TRADING is engaged in

4 Motion. Annex "A" 5 Ibid, Annex "B" CERTIFEDTRUE COPY OF SEC OGC

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Department (MSRD), and the Corporate Governance and Finance Department (CGFD) of the Commission which all showed that UPSYS

SRC; has not secured any permit to sell securities in its favor; has not filed Group has not registered any securities under Sections 8 and 12 of the

an application for the registration and/or permit to sell securities; and is not a registered issuer of mutual funds, exchange traded funds and proprietary/non-proprietary shares or membership certificates and timeshares under Sections 8 and 12 of the SRc.

informing the public that UPSYS Group, its CEO/Founder John Villarino, its director, and their Agents are selling/soliciting investments from the On 26 January 2023, the Commission issued an Advisoryf

public without the requisite authority, and warning the latter not to invest or to stop investing in the UPSYS Group and/or exercise caution in dealing with the latter.

Commission's Advisory by stating that it was registered as an OPC with the Commission.7 unauthorized investment-taking activities. It also tried to discredit the continued to sell/offer unregistered securities and carried out its Despite the issuance of the Advisory, the UPSYS Graup nonetheless

Hence, the instant Motion.

ISSUE

warrants the issuance of a CDO against the UPSYS Group, Mr. Contreras, Mr. Villarino, and their Agents. Whether the evidence presented by the EIPD in the instant Motion

DISCUSSION

The instant Motion is impressed with merit.

UPSYS Group is offering and/or selling unregistered securities to the public in the form of investment contracts without the requisite license from the Commission. The evidence presented by the EIPD substantially showed that the

Section 3 of the SRC defines "securities" as follows:

, Id. Annex "G" 7 fd. Annex "H" THE DOCUMENTS CIN RECORD CERTFEDTRUE CDPYO SEC OGC

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"SEC. 3. Definition of Terms.

interests in a corporation or in a commercial enterprise or 3.1. "Securities" are shares, participation or

profit-making venture and evidenced by a certificate. contract, instrument, whether written or electronic in character. It includes:

XXX

participation in a profit-sharing agreement, certificates of deposit for a future subscription;" (Emphasis supplied) (b)Investment contracts, certificates of interest or

SRC (the "SRC-IRR"} specifically defines an investment contract as follows: Rule 26.3.5 of the 2015 Implementing Rules and Regulations of the

transaction or scheme whereby a person invests his money in a common enterprise and is led to expect to exist whenever a person seeks to use the money or property of others on the promise of profits. profits primarily from the efforts ofothers. It is presumed "An investment contract means a contract,

more than a broker's commission." (Emphasis supplied) common enterprise, even if the promoter receives nothing (2) or more investors "pool" their resources, creating a A common enterprise is deemed created when two

approved Registration Statement and a Permit to Offer/Sell issued in favor of the applicant, to wit: that securities cannot be sold or offered for sale within the Philippines if the same are not registered with the Commission in the form of an In relation thereto, Section 8.1 of the SRC categorically provides

registration statement duly filed with and approved by Commission may prescribe, shall be made available toeachic Securities shall not be sold or offered for sale or the Commission. Prior such sale, information on the securities, in such form and with such substance_as_the "SEC. 8. Requirement of Registration of Securities. - 8.1 distribution within the Philippines, without E

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prospective purchaser." (Emphasis and underscoring supplied

In the case of Power Homes Unlimited v. Securities and Exchange Commission,8 the Supreme Court applied the afore-quoted provision and ruled that investment contracts are securities that are required to be registered with the Commission for the protection of the investing public. to wit:

8799, it must be registered with public respondent SEC. founded on the premise that the capital markets depend on {Underscoring supplied} fraudulent securities. The strict regulation of securities is the investing public's level of confidence in the system." "As an investment contract that is security under R.A. No. otherwise the SEC cannot protect the investing public from

solely from the efforts of others. On this basis, transactions or schemes expectation of earning a profit through the efforts of the promoter or of someone other than themselves were consistently been considered as investment contracts.io scheme whereby a person (1) makes an investment of money, (2) in a where individuals invest their money in a common enterprise with the American origin. It traces its roots from the US Supreme Court case entitled Securities and Exchange Commission v. W.J. Howey Co. where the Court held that an investment contract is a transaction, contract, or common enterprise, (3) with the expectation of profits, (4) to be derived The concept of an investment contract in the Philippines is of

an investment of money: (2) in a common enterprise; (3) with expectation transactions/schemes to be considered securities in the form of investment contracts, the following elements must be shown to exist: {1) of profits, (4) primarily from the efforts of others. The Supreme Court further ruled that whenever an investor relinquishes control over his or used in Power Homes Unlimited Corporation v. Securities and Exchange Commission,11 where the Supreme Court ruled that in our jurisdiction, for This concept of investment contract was thereafter adopted and

1 thid. Although the definition as stated in the Howey Case qualified that the earning of profit was individual who placed the money exerted a small amount of ffore in an attempt to earn the prgfits.or 3 Note 24, Supra. 9 32B U.S. 293, 66 S. Ct. 1100, 90 L. Ed. 1244, 163 A.L.R. 1043 (1946). expected to be solely through the efforts of another party, Rule 26.3 of the-2015 SRC IRR replaced the 11 G.R. No. 164182, 26 February 2008. qualifier with "primarily"" acknowledging that an investment contract may still berpresent where the THE DOCHMENTS ON RECTRD

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her funds and submits their control to another for the purpose of deriving profits from them, he or she is in fact investing in securities.12

fact that all the elements of the Howey Test are present in the instant it has no license to carry out the same. This finding is supported by the Commission agrees with the EIPD's finding, and so holds that the UPSYS Group is engaged in the sale and/or offer of unregistered securities in the form of investment contracts in violation of Section 8 of the SRc, because Applying the parameters established under the Howey Test, the

case.

First, the investment scheme of the UPSYS Group involves or

actually invested in the UPSYs Group.14 Moreover transaction merely requires the public to invest money in the that are being offered to the public.13 In the instant case, the EIPD was able to present evidence showing that people the protection of the investing public, it is sufficient that the target entity. requires persons to invest money ranging from PhP5o0.00 to PhP150,000.00 by purchasing any of the four (4) packages considering that what is sought is the issuance of a CDo for

UPSYS Group from the public; Second, the investment scheme of the UPSYS Group involves pay the guaranteed returns of existing investors to ensure their continued operation. This is the common enterprise that is being sustained by the investments received by the the pooling of the investors' money/funds which are used to

returns based on the investment plans that they purchase. income ranging from two percent (2%) to four percent (4%) per day where the payout is given on the end of the three (3) Necessarily, member-investors expect to receive passive month period; and Third, the UPSYS Group promises investors guaranteed

receive are generated by the efforts of the UPSYS Group, who carry out extensive marketing activities to ensure the Fourth, the profits which member-investors expect to coming-in of new investors, the receipt of investments, and

12 Investment Co. Institute v. Camp, 274 F. Supp. 624 (D. D.C. 1967). 13 Id. Annex "B" 14 Screenshots of actual investments were included in the Annex "B" submitted by the EIPD SEC - OGC SCHN RECORD DFY OR

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payment of the guaranteed returns to early investors. Thus, we find in the marketing/advertising materials of the UPSYs

their money, all they need to do is wait for the maturity date. Group an implied assurance that after investors part with

Moreover, the Commission also finds that the unauthorized

likewise proscribed by law as the same constitutes fraud upon the investing public, thus: investment scheme of the UPSYS Group is a Ponzi scheme which is

second or third round of investors and then absconds before anyone else shows up to collect. xxx.".i5 (Emphasis supplied) invest funds in opportunities claimed to generate high is an ever increasing number of new investors joining period of time because the operator needs an ever larger pool of later investors to continue paying the promised profits to early investors. The idea behind this type of swindle is that the "con-man" collects his money from his organizers often solicit new investors by promising to returns with little or no risk. In many Ponzi schemes, the the scheme. It is difficult to sustain the scheme over a long perpetrators focus on attracting new money to make legitimate business. It is not an investment strategy but a gullibility scheme, which works only as long as there "To be sure, Ponzi scheme is a type of investment fraud that investors from funds contributed by new investors. Its promised payments to earlier-stage investors to create the false appearance that investors are profiting from a involves the payment of purported returns to existing

engaged in the unauthorized offering of securities inasmuch as they are using the internet/social media platforms i.e. Facebook accounts to publish their investment scheme. Furthermore, the Commission also holds that the UPSYS Group is

follows: Rule 3.1.17 of the 2015 SRC IRR defines "Public Offering" as

solicitation or presentation of securities for sale through any "3.1.17. Public offering is any offering of securities to the public or to anyone, whether solicited or unsolicited. Any

15 People vs.Palmy Tibayan and Ric Z Puerte {GRNo.20965-60,4 Janury15TRUE COPY OF SEC-OGC FFTEENHECRT

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of the following modes shall be presumed to be a public offering:

X X X

3.1.17.3 Advertisement or announcement in radio, television, telephone, electronic communications, information communication technology or any other forms of communication;"16 (Emphasis supplied)

The negative Certifications issued by the CRMD, MSRD and CGFD

the UPSYS Group is engaged in the unauthorized sale/offer of securities fully supported and affirmed the allegation and finding of the EIPD that considering that they have no license to carry out such activities.

Relative to the issuance of a CD0, Section 64.1 of the SRC provides that the Commission may issue a CDo without the necessity of conducting a hearing if, to its mind, the act or practice will operate as a fraud on investors or is otherwise likely to cause grave or irreparable injury or prejudice to the investing public, thus:

or is otherwise likely to cause grave or irreparable injury or prejudice to the investing public." (Emphasis supplied) "Section 64. Cease and Desist Order.- 64.1. The Commission, after proper investigation or verification, motu proprio or upon verified complaint hy any aggrieved party, may issue a cease and desist order without the necessity of a prior hearing if in its judgment the act or practice, unless restrained, will operate as a fraud on investors

requisites that must be complied with before a CDO can be validly issued: Under the afore-quoted provision, there are two (2) essential

1) There must be a conduct of a proper investigation or verification; and

2) There must be a finding that the act or practice, unless restrained, will operate as a fraud on investors or is otherwise likely to cause grave or irreparable injury or prejudice to the investing public.17

17 Securities and Exchange Commission vs. Performance Foreign Exchange Corporation,GR-No-154131, July 20, 2006. 16 Rule 3.1.17 of the Implementing Rules and Regulations of the SRC THE I CERTFED EITHT TRUE COYO ITS ON RECORD

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First, the records disclose that the EIPD conducted a formal investigation and presented sufficient evidence in support of its Motion i.e. Certifications from the CRMD, CGFD and MSRD.18 Affidavit of the EIPD19 In the instant case, the foregoing requisites were complied with.

investigating officers on the conduct of their investigation; screenshots of Facebook postings, Facebook live videos showing the presentations made by Mr. Villarino of the investment schemes offered by the UPSYS Group.

Second, this Commission is convinced that the evidence presented which showed the unauthorized investment-taking activities of the UPSYS Group warrants the issuance of a CDO because the same will operate as a fraud on investors, or is likely to cause grave or irreparable injury or prejudice to the investing public, if not restrained. This finding is supported by the fact that in relation to UPSYS Daily OPC, its authorized

simply sustain an investment scheme which promises its investors a capital stock is only One Million Pesos (P1,000,000.00]. The same cannot guaranteed return ranging from 2% to 4% daily.

the records that UPSYS Group's act of selling/offering unregistered should be promptly restrained for the protection of the investing public. thus: securities in the form of an investment contract constitutes fraud which This finds support in the case of Securities and Exchange Commission vs. CiH Development Corp.20 where the Supreme Court categorically held, Finally, this Commission cannot overemphasize the fact borne by

for this provision, as any delay in the restraint of acts to the public that the SEC is obliged to protect. aggrieved party. A prior hearing is also not required whenever the Commission finds it appropriate to issue a or irreparable injury to investors. There is good reason that yield such results can only geuerate further injury "The law is clear on the point that a cease and desist order may be issued by the SEc motu proprio, it being unnecessary that it results from a verified complaint from an cease and desist order that aims to curtail fraud or grave

necessarily operate as a fraud on investors as it deceives The act of selling unregistered securities would

20 G.R No. 210316, Novermber 28, 2016. 1 Motion. Annexes "D" to "F" 19 (bid. Annex "C" THE DOCUMENTS ON RECORD CERTFED TRUE COPY O SEC-OGC

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the investing public by making it appear that respondents have authority to deal on such securities. Section 8.1 of the SRC clearly states that securities shall not be sold or offered for sale or distribution within the Philippines without a registration statement duly filed with and approved by the SEc and that prior to such sale information on the securities, in such form and with such substance as the SEc may prescribe, shall be made available to each prospective buyer." (Emphasis supplied]

WHEREFORE. premises considered, directing UPSYS DAILY TRADING, UPSYS DAILY TRDING MANAGEMENT OPC and UPSYS DAILY

agent John Rey Baldenas Villarino, its single stockholder, director, and TRDING MANAGEMENT CONSULTANCY, its DTI-registered owner and president Mark Uy Contreras, its nominee and alternate nominee Michael Reyes Puente and June Mendoza Samson, its officers, operators. administrators, promoters, representatives, salesmen, agents

registration statement is duly filed with and approved by the CEASE AND DESIST from engaging in the unlawful/unauthorized Commission. conduit entities, subsidiaries, and any and all persons claiming and/or solicitation, offer and/or sale of securities in the form of investment contracts and/or any other similar or related acts, until the requisite investment team planners, mentors, enablers, influencers, assigns, acting for and in their behalf, are hereby ordered to IMMEDIATELY

information providers, salesmen, agents, brokers, dealers or the like for alternate nominee Michael Reyes Puente and June Mendoza Samson, its salesmen, agents, investment team planners, mentors, enablers. influencers, assigns, conduit entities, subsidiaries, and any and all criminal action against any persons or entities found to act as solicitors, and in their behalf. registered owner and agent John Rey Baldenas Villarino, its single officers, operators, administrators, promoters, representatives, persons claiming and/or acting for and in their behalf are likewise directed to immediately CEASE their internet presence relating to the transactions and investment scheme covered by this Cease and Desist Order. The Commission will institute the appropriate administrative and stockholder, director, and president Mark Uy Contreras, its nominee and OPC and UPSYS DAILY TRDING MANAGEMENT CONSULTANCY, DTI UPSYS DAILY TRADING, UPSYS DAILY TRDING MANAGEMENT

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Finally, the Commission hereby PROHIBITS UPSYS DA!LY TRADING, UPSYS DAILY TRDING MANAGEMENT OPC and UPSYS DAILY TRDING MANAGEMENT CONSULTANCY, DTI-registered owner and agent John Rey Baldenas Villarino, its single stockholder, director, and president Mark Uy Contreras, its nominee and alternate nominee Michael Reyes Puente and June Mendoza Samson, its officers, operators, administrators, promoters, representatives, salesmen, agents, investment team planners, mentors, enablers, influencers, assigns, conduit entities, subsidiaries, and any and all persons claiming and/or

funds in its depository banks and/or in any non-bank financial institution, and from transferring, disposing, or conveying in any manner. acting for and in their behalf from transacting any husiness involving the

if any, of which the named persons herein may have interest, claim or any and all assets, properties, real or personal, including bank deposits,

participation, whether directly or indirectly, under their custody, to ensure the preservation of the assets of the investors.

The EIPD of the Commission is hereby DIRECTED to:

1} SerVe this Cease and Desist Order to UPSYS DAILY TRADING nominee, and DTI-registered owner; or if impracticable;21 stockholder/director/president, its nominee and alternate TRDINGMANAGEMENTCONSULTANCY,itS UPSYS DAILY TRDING MANAGEMENT OPC and UPSYS DAILY single

2) Cause the posting of this Cease and Desist Order in the Commission's website.

report, hy way of pleading, to the Commission En Banc within ten (10) days from receipt of this Cease and Desist Order. The EIPD is FURTHER DIRECTED to submit a formal compliance

and Industry, the National Privacy Commission, the Department of Information and Communications Technology Department of this Information and Communications Technology, and the relevant local government unit(s) for their information and appropriate action. and Monitoring Department, Market and Securities Regulation Department, Corporate Governance and Finance Department and the Commission, the Bangko Sentral ng Pilipinas, the Department of Trade Let a copy of this Order be furnished to the Company Registration

z1 Due to Declaration of State of Public Health Emergency throughout the Philippinesas deCfafed by President Rodrigo Duterte under Presidential Proclamation No. 922. S. 2020 dartet 8 Marchr2020:0)P O THE E N FEOR

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Part II, Rule IV, Section 4-3 of the 2016 Rules of Procedure of the SEC, the In accordance with the provisions of Section 64.3 of the SRC and

Respondent may file a verified Motion to Lift the CDo to the Commission En Banc thru the Office of the General Counsel, within five {5} days from receipt of this Order.

FAIL NOT UNDER PENALTY OF LAW

SO 0RDERED

Makati City, Philippines.

EMILIO B.AQUINO Chairderson

JAVEY PAUL D. FRANCISCO K AVRL LESTER K LEE

Commissioner Commissioner

KARLO: Commissioner BELLO MCJILL BRYANT T. FERNANDEZ Commissioner

SEC -DGC

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SECURITIES AND EXCHANGE COMMISSION SRC HEADQUARTERS, 7907 Makati AVenuc Salcedo Vilage, Bs-ir, Makati City Republic of the Philippines A0rH f{ Z0Z3

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consisting of .thiretEeN (3)_pages, pertainng to I HEREBY CERTIFY tat the forCgomgts H frK and correct xerox reprodiction of the official nie H} thereof in the SEC CQD O3 23=1O0 custody of this Corussiot

GIPSY C.DAYAUN SEC Administrative Officer H Verified By. OR No. Fees: Dated Paid unde.