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Ruling: No. the security to the debt due must be exhausted first
before the REM with the dragnet clause be used.
1. It was therefore improper for petitioner in this case to seek
foreclosure of the mortgaged property because of nonpayment of all the three promissory notes.
2. While the existence and validity of the dragnet clause
cannot be denied, there is a need to respect the existence of
the other security given for PN BD#76/C-345.
a. The foreclosure of the mortgaged property should
only be for the P250,000.00 loan covered by PN
BD#75/C-252, and for any amount not covered by
the security for the second promissory note.
CASE 2: Peoples Bank & Trust Company & Atlantic Gulf and
Pacific Co. of Manila v. Dahican Lumber Company, et al.,
FACTS: ATLANTIC sold and assigned all its right in the DALCO for
the total sum of P500,000.00 of which only the amount of $50,000.00
was paid. DALCO obtained various loans from the People's Bank &
Trust Company amounting to P200,000.00. DALCO also obtained,
through the Bank, a loan of $250,000.00 from the Export-Import
Bank of Washington D.C., evidenced by five promissory notes of
$50,000.00 each, maturing on different dates, payable to the BANK
or its order.
As security for the payment of the loans, DALCO executed in favor of
the BANK a deed of mortgage covering live parcels of land situated
in the province of Camarines Norte, together with all the buildings
and other improvements existing thereon and all the personal
properties of themortgagor located in its place of business in the
municipalities of Mambulao and Capalonga,Camarines Norte.
DALCO executed a second mortgage on the same properties in
favor of ATLANTIC to secure payment of the unpaid balance of the
sale price of the lumber concession amounting to the sum of
$450,000.00. Both deeds contained a provision which stated that it
ISSUE: (1) WON the bank abandoned the real estate mortgage in its
favor because it filed a simple collection case
(2) WON the banks complaint before the trial court was an action
for foreclosure of a real estate mortgage, or an action for collection of
a sum of money
HELD: (1) No, it did not.
(2) it was an action for foreclosure of a real estate mortgage
RATIO: In the banks complaint before the TC, Par 183 alleges:To
secure payment of the obligations of Filkor, it executed a Real Estate
Mortgage by virtue of which it mortgaged to thebank the
improvements standing on Rosario, Cavite, belonging to Filkor
consisting of a one-story building calledwarehouse and spooling
area, the guardhouse, the cutting/sewing area building and the
packing area building.
This allegation satisfies the requirements of Rule 68.1 1997 Rules of
Civil Procedure on foreclosure of real estate mortgage,
whichprovides:SEC 1. Complaint in action for foreclosure. In an
action for the foreclosure of a mortgage or other encumbrance
uponreal estate, the complaint shall set forth the date and due
execution of the mortgage; its assignments, if any; the namesand
residences of the mortgagor and the mortgagee; a description of the
mortgaged property; a statement of the date of the note or other
documentary evidence of the obligation secured by the mortgage,
the amount claimed to be unpaidthereon; and the names and
residences of all persons having or claiming an interest in the
property subordinate in right tothat of the holder of the mortgage, all
of whom shall be made defendants in the action.
The banks allegations in its complaint, and its prayer that the
mortgaged property be foreclosed and sold at public auction, indicate
that the action was one for foreclosure of real estate mortgage. SC
has consistently ruled that what determines the nature of an action,
as well as which court or body has jurisdiction over it, are the
allegations of the complaint and the character of the relief sought.
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RATIO: While private respondent was constituted as their attorneyin-fact by petitioners, the inclusion of the aforequoted paragraph (k)
in the mortgage contract nonetheless rendered personal notice to the
latter indispensable. As we stated in Community Savings & Loan
Association, Inc., et al. vs. Court of Appeals, et al., where we had the
occasion to construe an identical provision:
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apprised, they may take the necessary legal steps for the
protection of their interests such as the payment of the loan to
prevent foreclosure or to subsequently arrange for redemption
of the property foreclosed.
What private respondent would want is to have paragraph (k)
considered as non-existent and consequently disregarded, a
proposition which palpably does not merit consideration.
Furthermore, it bears mention that private respondent having caused
the formulation and preparation of the printed mortgage contract in
question, any obscurity that it imputes thereto or which supposedly
appears therein should not favor it as a contracting party.
6. The RABATs admitted their loan availments from PNB and their
default in the payment. However, they assailed the validity of the
auction sales for want of notice to them before and after the
foreclosure sales. They further added that as residents of Mati,
Davao Oriental since 1970 up to the present, they never received
any notice nor heard about the foreclosure proceeding in spite of the
claim of PNB that the foreclosure proceeding had been duly
published in the San Pedro Times, which is not a newspaper of
general circulation.
7. The RABATs likewise averred that the bid price was grossly
inadequate and unconscionable. Lastly, the RABATs attacked the
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PNB had the legal right to recover the deficiency amount. In the case
of PNB vs. CA, it is settled that if the proceeds of the sale are
insufficient to cover the debt in an extrajudicial foreclosure of the
mortgage, the mortgagee is entitled to claim the deficiency from the
debtor. For when the legislature intends to deny the right of a
creditor to sue for any deficiency resulting from foreclosure of
security given to guarantee an obligation it expressly provides as in
the case of pledges [Civil Code, Art. 2115] and in chattel mortgages
of a thing sold on installment basis [Civil Code, Art. 1484(3)]. Act No.
3135, which governs the extrajudicial foreclosure of mortgages, while
silent as to the mortgagees right to recover, does not, on the other
hand, prohibit recovery of deficiency. Accordingly, it has been held
that a deficiency claim arising from the extrajudicial foreclosure is
allowed.
There should be no question that PNB was legally entitled to recover
the penalty charge of 3% per annum and attorneys fees equivalent
to 10% of the total amount due. The documents relating to the loan
and the real estate mortgage showed that the Spouses Rabat had
expressly conformed to such additional liabilities; hence, they could
not now insist otherwise. To be sure, the law authorizes the
contracting parties to make any stipulations in their covenants
provided the stipulations are not contrary to law, morals, good
customs, public order or public policy. Equally axiomatic are that a
contract is the law between the contracting parties, and that they
have the autonomy to include therein such stipulations, clauses,
terms and conditions as they may want to include. Inasmuch as the
Spouses Rabat did not challenge the legitimacy and efficacy of the
additional liabilities being charged by PNB, they could not now bar
PNB from recovering the deficiency representing the additional
pecuniary liabilities that the proceeds of the forced sales did not
cover.
CASE 9: GOLDENWAY MERCHANDISING CORP. v. CA
FACTS: 1. On November 29, 1985, Goldenway Merchandising
Corporation (petitioner) executed a Real Estate Mortgage in favor of
Equitable PCI Bank (respondent) over its real properties situated in
Valenzuela, Bulacan (now Valenzuela City) and covered by Transfer
Certificate of Title (TCT) Nos. T-152630, T-151655 and T-214528 of
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7. Goldenway appealed to the CA, but the said court affirmed the
ruling of the RTC. According to the CA, petitioner failed to justify why
Section 47 of R.A. No. 8791 should be declared unconstitutional.
Furthermore, the appellate court concluded that a reading of Section
47 plainly reveals the intention to shorten the period of redemption
for juridical persons and that the foreclosure of the mortgaged
properties in this case when R.A. No. 8791 was already in effect
clearly falls within the purview of the said provision.
ISSUE/S: WON RA No. 8791, which gives juridical person
shorter time for redemption, be applied in the case at bar
despite the fact that the Real Estate Mortgage was executed
in 1985 (before the enactment of RA 8791).
HELD: YES. RA No. 8791 may be applied.
RATIO: SECTION 47. Foreclosure of Real Estate Mortgage.
(amended portion with regard to Juridical persons)
Notwithstanding Act 3135, juridical persons whose
property is being sold pursuant to an extrajudicial
foreclosure, shall have the right to redeem the property
in accordance with this provision until, but not after, the
registration of the certificate of foreclosure sale with the
applicable Register of Deeds which in no case shall be
more than three (3) months after foreclosure, whichever
is earlier. Owners of property that has been sold in a
foreclosure sale prior to the effectivity of this Act shall retain
their redemption rights until their expiration. (Emphasis
supplied.)
Petitioners contention that Section 47 of R.A. 8791 violates the
constitutional proscription against impairment of the obligation of
contract has no basis. The purpose of the non-impairment clause of
the Constitution is to safeguard the integrity of contracts against
unwarranted interference by the State. As a rule, contracts should
not be tampered with by subsequent laws that would change or
modify the rights and obligations of the parties. Impairment is
anything that diminishes the efficacy of the contract. There is
impairment if a subsequent law changes the terms of a contract
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cancel the mortgage, to the prejudice of the other heirs who have not
been paid. From these provisions is excepted the case in which,
there being several things given in mortgage or pledge, each one of
these guarantees only a determinate portion of the credit. The
debtor, in this case, shall have a right to the extinguishment of the
pledge or mortgage as the portion of the debt for which each thing is
specially answerable is satisfied.
It is apparent that what the law proscribes is the foreclosure of only a
portion of the property or a number of the several properties
mortgaged corresponding to the unpaid portion of the debt where
before foreclosure proceedings partial payment was made by the
debtor on his total outstanding loan or obligation. This also means
that the debtor cannot ask for the release of any portion of the
mortgaged property or of one or some of the several lots mortgaged
unless and until the loan thus, secured has been fully paid,
notwithstanding the fact that there has been a partial fulfillment of the
obligation. Hence, it is provided that the debtor who has paid a part
of the debt cannot ask for the proportionate extinguishment of the
mortgage as long as the debt is not completely satisfied.
That the situation obtaining in the case at bar is not within the
purview of the aforesaid rule on indivisibility is obvious since the
aggregate number of the lots which comprise the collaterals for the
mortgage had already been foreclosed and sold at public auction.
There is no partial payment nor partial extinguishment of the
obligation to speak of. The aforesaid doctrine, which is actually
intended for the protection of the mortgagee, specifically refers to the
release of the mortgage which secures the satisfaction of the
indebtedness and naturally presupposes that the mortgage is
existing. Once the mortgage is extinguished by a complete
foreclosure thereof, said doctrine of indivisibility ceases to apply
since, with the full payment of the debt, there is nothing more to
secure.
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HELD: 1) Yes 2) No
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which would bar any other acceptable for a wherein the said sale
may be conducted, to wit:
It is hereby agreed that in case of foreclosure of this mortgage under
Act 3135, the auction sale shall be held at the capital of the province
if the property is within the territorial jurisdiction of the province
concerned, or shall be held in the city if the property is within the
territorial jurisdiction of the city concerned; x x x.
FACTS:
1.
Herein
petitioners,
Spouses Esmeraldo and
Elizabeth Suico, obtained a loan from the Philippine National Bank
(PNB) secured by a real estate mortgage on real properties in the
name of the former.
2. The petitioners were unable to pay their obligation prompting the
PNB to extrajudicially foreclose the mortgage over the subject
properties before the City Sheriff of Mandaue City under EJF Case
No. 92-5-15.
5. PNB did not pay to the Sheriff who conducted the auction sale the
amount of its bid which was P8,511,000.00 or give an accounting of
how said amount was applied against petitioners outstanding loan,
which, as of 10 March 1992, amounted only to P1,991,770.38. Since
the amount of the bid grossly exceeded the amount of petitioners
outstanding obligation as stated in the extrajudicial foreclosure of
mortgage, it was the legal duty of the winning bidder, PNB, to deliver
to the Mandaue City Sheriff the bid price or what was left thereof
after deducting the amount of petitioners outstanding
obligation. PNB failed to deliver the amount of their bid to
the Mandaue City Sheriff or, at the very least, the amount of such bid
in excess of petitioners outstanding obligation.
In this regard, since the auction sale was conducted in Ormoc City,
which is within the territorial jurisdiction of the Province of Leyte, then
the Court finds sufficient compliance with the above-cited
requirement. All told, finding that the extra-judicial foreclosure subject
of this case was properly conducted in accordance with the
formalities of Act No. 3135, the Court upholds the same as a valid
exercise of respondent's third option under Section 7, Rule 86. To
reiterate, respondent cannot, however, file any suit to recover any
deficiency amount since it effectively waived its right thereto when it
chose to avail of extra-judicial foreclosure as jurisprudence instructs.
CASE 13: SUICO v. PNB
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ISSUE: WON the writ of possession was properly issued (despite the
pendency of a case questioning the validity of the extrajudicial
foreclosure sale and despite the fact that petitioners were declared in
default in the proceeding for the issuance of a writ of possession)
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CASE 15: BPI Family Savings Bank, Inc. v. Golden Power Diesel
Sales Center, Inc., G.R. No. 176019, January 12, 2011, 639 SCRA
405.
Facts:
1. the loan and the mortgage: CEDEC (predecessor-ininterest of Golden Power Diesel Sales Center) executed a
real estate mortgage in favour of BPI Family Savings to
secure a loan of P6.5M. subsequently, CEDEC obtained
other several loans
a. the mortgage was duly annotated.
2. Default and Extrajudicial Foreclosure: CEDEC failed to
pay its obligations, hence, BPI Family Savings filed with the
ex-officio sheriff of the RTC a petition for extrajudicial
foreclosure of real estate mortgage over the properties under
Act No. 3135.
a. After the notice reqs had been complied with, the
sale was done in the public auction and was sold
to BPI family as the highest bidder.
3. the 1 year redemption lapsed from the date of sale
without the CEDEC exercising redemption.
4. Issue of Possession: Despite repeated demands by the
Bank to vacate the land, CEDEC refused to surrender the
possession to BPI Family
a. Because of this, the trial court granted and issued
the writ of possession in favour of BPI.
5. the Assignee: Golden power then filed a motion To Hold
implementation of the Writ of Possession alleging that they
are in possession of the properties acquired g form CEDEC
pursuant to a Deed of Sale with Assumption of Mortgage.
a. They argue that they are claiming possession
adverse to CEDEC, hence, seeking exception to the
rule that the purchaser has the right to possess
under Sec. 33 of Rule 39 of the Rules of Court which
states that:
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