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ISSUE/S
1. W/N the subsequent loans were covered by the REM - NO
2. W/N payment of the principal and stipulated interest is sufficient to discharge
the REM - NO
Page !1 of !17
DOCTRINE Island Savings Bank can neither foreclose the real estate mortgage nor
collect the P17,000.00 loan
FACTS
- On April 28, 1965, Island Savings Bank, upon favorable recommendation of Hence, this petition.
its legal department, approved the loan application for P80,000.00 of
Sulpicio M. Tolentino, who, as a security for the loan, executed on the same ISSUE/S
day a real estate mortgage over his 100-hectare land located in Cubo, Las 1. W/N the foreclosure may proceed despite the fact that there was partial
Nieves, Agusan, and which mortgage was annotated on the said title the release of P17,000.00 only
next day.
- The approved loan application called for a lump sum P80,000.00 loan, RULING & RATIO
repayable in semi-annual installments for a period of 3 years, with 12% 1. YES, but only to the extent of the actual sum due
annual interest. It was required that Sulpicio M. Tolentino shall use the loan - The fact that when Tolentino executed his real estate mortgage, no
proceeds solely as an additional capital to develop his other property into a consideration was then in existence, as there was no debt yet because
subdivision. Island Savings Bank had not made any release on the loan, does not make
- On May 22, 1965, a mere P17,000.00 partial release of the P80,000.00 loan the real estate mortgage void for lack of consideration. It is not necessary
was made by the Bank; and Sulpicio M. Tolentino and his wife Edita that any consideration should pass at the time of the execution of the
Tolentino signed a promissory note for P17,000.00 at 12% annual interest. contract of real mortgage.
- An advance interest for the P80,000.00 loan covering a 6-month period - lt may either be a prior or subsequent matter. But when the consideration is
amounting to P4,800.00 was deducted from the partial release of subsequent to the mortgage, the mortgage can take effect only when the
P17,000.00. But this pre-deducted interest was refunded to Sulpicio M. debt secured by it is created as a binding contract to pay
Tolentino on July 23, 1965, after being informed by the Bank that there was - And, when there is partial failure of consideration, the mortgage
no fund yet available for the release of the P63,000.00 balance. becomes unenforceable to the extent of such failure. Where the
o It was repeatedly promised by the bank that they will release the indebtedness actually owing to the holder of the mortgage is less than
remaining P63,000.00. the sum named in the mortgage, the mortgage cannot be enforced for
- On August 13, 1965, the Monetary Board of the Central Bank, after finding more than the actual sum due
Island Savings Bank was suffering liquidity problems. - Since Island Savings Bank failed to furnish the P63,000.00 balance of the
o The Monetary Board prohibited the bank from making new loans P8O,000.00 loan, the real estate mortgage of Sulpicio M. Tolentino became
and investments. unenforceable to such extent. P63,000.00 is 78.75% of P80,000.00, hence
- On June 14, 1968, the Monetary Board, after finding that Island Savings the real estate mortgage covering 100 hectares is unenforceable to the
Bank failed to put up the required capital to restore its solvency, issued extent of 78.75 hectares. The mortgage covering the remainder of 21.25
Resolution No. 967 which prohibited Island Savings Bank from doing hectares subsists as a security for the P17,000.00 debt. 21.25 hectares is
business in the Philippines. more than sufficient to secure a P17,000.00 debt.
- On August 1, 1968, Island Savings Bank, in view of non-payment of the - Since Island Savings Bank failed to furnish the P63,000.00 balance of
P17,000.00 covered by the promissory note, filed an application for the the P8O,000.00 loan, the real estate mortgage of Sulpicio M. Tolentino
extra-judicial foreclosure of the real estate mortgage covering the 100- became unenforceable to such extent. P63,000.00 is 78.75% of
hectare land of Sulpicio M. Tolentino. P80,000.00, hence the real estate mortgage covering 100 hectares is
- Sulpicio M. Tolentino filed a petition with the CFI of Agusan for injunction, unenforceable to the extent of 78.75 hectares. The mortgage covering
specific performance or rescission and damages with preliminary injunction, the remainder of 21.25 hectares subsists as a security for the
alleging that since Island Savings Bank failed to deliver the P63,000.00 P17,000.00 debt. 21.25 hectares is more than sufficient to secure a
balance of the P80,000.00 loan, he is entitled to specific performance by P17,000.00 debt.
ordering Island Savings Bank to deliver the P63,000.00 with interest of 12%
per annum from April 28, 1965, and if said balance cannot be delivered, to DISPOSITION
rescind the real estate mortgage WHEREFORE, THE DECISION OF THE COURT OF APPEALS DATED FEBRUARY
- The trial court, upon the filing of a P5,000.00 surety bond, issued a 11, 1977 IS HEREBY MODIFIED, AND
temporary restraining order enjoining the Island Savings Bank from
continuing with the foreclosure of the mortgage. 1. SULPICIO M. TOLENTINO IS HEREBY ORDERED TO PAY IN FAVOR OF
- RTC: Petition of Tolentino unmeritorious. HEREIN PETITIONERS THE SUM OF P17.000.00, PLUS P41,210.00
o ordered him to pay Island Savings Bank the amount of P 17 000.00 REPRESENTING 12% INTEREST PER ANNUM COVERING THE PERIOD FROM
plus legal interest and legal charges MAY 22, 1965 TO AUGUST 22, 1985, AND 12% INTEREST ON THE TOTAL
o TRO lifted AMOUNT COUNTED FROM AUGUST 22, 1985 UNTIL PAID;
- Tolentino appealed.
- CA: Modified the Court of First Instance decision by affirming the dismissal
of Sulpicio M. Tolentino's petition for specific performance, but it ruled that
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2. IN CASE SULPICIO M. TOLENTINO FAILS TO PAY, HIS REAL ESTATE
MORTGAGE COVERING 21.25 HECTARES SHALL BE FORECLOSED TO SATISFY
HIS TOTAL INDEBTEDNESS; AND
NO COSTS. SO ORDERED.
Page !3 of !17
DOCTRINE oSale or transfer cannot affect or release the mortgage. A purchaser
is necessarily bound to acknowledge and respect the
FACTS encumbrance
- September 14, 1982, Manila International Construction Corporation (MICC) o a recorded real estate mortgage is a right in rem, a lien on the
executed a real estate mortgage over 21 parcels of land including the property whoever its owner may be.
improvements in favor of Banco Filipino Savings and Mortgage Bank (Banco - PETITIONERS ARE NOT ENTITILED TO REDEEM
Filipino) to secure a loan of P1,885,000.00. o The debtor has 1 year to redeem but the petitioner failed to do so.
o It was registered and annotated at Registry of Deeds. - THE HOUSES ARE COVERED IN THE MORTGAGE
- MICC sold 1 house and lot to SPS PADERES and 1 house and lot to SPS. o Being improvements on the subject properties constructed by
BERGARDO. mortgagor MICC, there is no question that they were also covered
o However, the sale was not registered. by MICCs real estate mortgage following the terms of its contract
- MICC failed to settle its obligation. Thus, BANCO FILIPINO filed a petition with Banco Filipino and Article 2127
for extra-judicial foreclosure of MICCs mortgage. - THE RIGHT OF THE APPLICANT TO ASK FOR THE ISSUANCE OF A
o BANCO FILIPINO was the highest bidder. Thus, a certificate of sale WRIT OF POSSESSION OF THE LAND NEVER PRESCRIBES
was issued and registered with Registry of Deeds. DISPOSITION
o No redemption of foreclosed mortgage had been made. WHEREFORE, the petition is hereby DENIED.
- CALOTA VALENZUELA, as liquidator of BANCO FILIPINO, obtained a Writ
of Possession of the foreclosed properties. Thus, a notice was addressed to
MICC and/or All persons claiming rights under them to voluntarily vacate
the premises.
- Instead of vacating, SPS. PADERES and SPS. BERGARDO filed a petition
to CA, assailing the validity of Writ of Possession.
o CA dismissed the petition
Hence, this petition.
PETITIONERS Contention:
- Having purchased their properties in good faith from MICC, their right is
superior to that of Banco Filipino.
- Still entitled to redeem the properties
- Their respective houses should not have been included in the auction sale Philippine Bank of Communications v. CA
GR # 118552 | February 5, 1996
ISSUE/S Petition: Petition for Review on Certiorari
1. W/N the extrajudicial foreclosure and writ of possession is valid Petitioner: Philippine Bank of Communications
Respondent: Court of Appeals and the Spouses Alejandro and Amparo Casafranca
New Civil Code Art. 2127
RULING & RATIO
YES DOCTRINE
- SPS PADERES and SPS BERGARDO purchased their properties from A mortgage must sufficiently describe the debt sought to be secured, which
MICC in good faith is of no moment. The purchases took place after description must not be such as to mislead or deceive, and an obligation is not
MICCs mortgage to Banco Filipino had been registered in accordance secured by a mortgage unless it comes fairly within the terms of the mortgage
with Article 212520 of the Civil Code and the provisions of P.D. 1529
FACTS
(PROPERTY REGISTRY DECREE). Spouses Casafranca used to be owners of a lot
- a real right or lien in favor of Banco Filipino had already been established, They sold the lot to Carlos Po who paid part of the agreed price. After
subsisting over the properties until the discharge of the principal obligation, securing title in his name, mortgaged the lot to the Philippine Bank of
whoever the possessor(s) of the land might be. Communications (PBCom) to secure a loan of P 330,000.
- In PNB v. Mallorca, the court held that: In a civil action that ensued between Spouses and Po, the spouses obtained
a favorable judgment against Po.
Page !4 of !17
Later, in an auction sale to satisfy Pos judgment obligation, Spouses o The mortgage contract explicitly provides for interest of 12% per
acquired the aforesaid lot and a Certificate of Sale was executed in their annum or at such other higher rate or rates as may be fixed by the
favor. MORTGAGEE from time to time, and shall be payable at the end of
Meanwhile, PBCom applied for extrajudicial foreclosure of the mortgage every month or otherwise, as the MORTGAGEE may elect and, if
executed by Po, and in the succeeding auction sale, it acquired the lot in a not so paid, shall be added to, and become part of, the principal
winning bid of P1,006,540.66. The corresponding Certificate of Sale was and shall earn interest at the same rate as the principal
then executed in its favor. To recapitulate, the principal loan obtained by Carlos Po (now succeeded by
It appears further that Amparo Casafranca who had stepped into the shoes Spouses) was P330,000. Interest thereon for the first year at 12% per
of the mortgagor Po by virtue of the auction sale in her favor offered to annum was retained or deducted from the proceeds of the loan. Compound
redeem the property from PBCom by tendering to its manager a check in the interests earned at the same rate reached P77,660. And then the rate of
amount of P500,000 which in her estimate would be sufficient to settle the interest was raised to 14% per annum, as authorized in the mortgage
account of Po. PBCom did not accept the check as it insisted that any such contract. At such rate, compound interests for said period would be in the
redemption should be at the price it acquired the lot in the auction sale. sum of P343,805. Adding both interest earnings to the principal obligation,
Spouses, in reaction, filed against PBCom a civil case for nullification of the the total account would then be P751,465. Additionally, the mortgage
foreclosure and auction sale. contract provides for attorneys fee[s] equivalent to 10% of the amounts due.
Court set aside the extrajudicial foreclosure and auction sale and declared Hence, the sum of P75,146.50 in the concept of attorneys fee[s] would raise
that the obligation secured by the mortgage executed by Po was only the account to P826,611.50. Finally, the amount of P83,028.18 representing
P330,000 plus stipulated interest and charges. realty taxes paid by PBCom for the lot, inclusive of interest, which must be
PBCom advised the spouses to pay the sum of P884,281.38 purportedly reimbursed, will bring the grand total of the account to 909,639.68.
representing Pos principal account of P330,000, interest and charges The publication and other expenses incurred in the foreclosure and auction
thereon, attorneys fees and realty taxes which it paid for the lot. sale [to] the tune of P707 should be deducted from the amount of
Spouses however did not agree with said Statement of Account and since P1,184,000 which Natalie Limchio paid for the lot, leaving net proceeds of
the account remained unpaid, PBCom again applied for extrajudicial P1,183,293. Subtracting therefrom the total account due to PBCom, the
foreclosure of mortgage during which it was sold to Natalie Limchio. residue would be P273,653.32, which must be delivered to plaintiffs.
Spouses commenced the present action to nullify the auction sale in favor of Trial Court ruled in favor of Spouses for the sum of P273, 653.32.
Limchio. Spouses further alleged that PBCom refused to turn over the Both parties appealed. PBCom questioned the lower courts failure to include
correct amount of residue after paying off the mortgage and costs of the in its computation the penalty stipulated in the promissory notes
sale. CA affirmed trial courts decision in toto.
Upon application of Spouses, a TRO enjoining sheriffs from transferring the PBCom insists that the penalties in the promissory note are covered (Nota
title of the lot in favor of defendant Limchio and the latter, from taking Bene: thereby effectively increasing the grand total of the account of Po
possession of the lot. effectively decreasing the residue that it must pay the Spouses)
Hence, what is left for the Court to ascertain is the true and correct account
of Po as of the auction sale (that pertaining to Limchio as winning bidder) ISSUE/S
after which, the determination of the residue would follow. Whether, in the foreclosure of a real estate mortgage, the penalties
PROMISSORY NOTE (provide for penalties) stipulated in two promissory notes secured by the mortgage may be charged
o For value received, I/we jointly and severally, promise to pay the against the mortgagors as part of the sums secured, although the mortgage
Philippine Bank of Communications, at its office in the City of Cebu, contract does not mention the said penalties - NO
Philippines the sum of THREE HUNDRED THOUSAND PESOS
(P300,000.00), Philippine Currency, together with interest thereon RULING & RATIO
at the rate of TWELVE % per annum until paid, which interest rate 1. NO
the Bank may at any time without notice, raise within the limits
allowed by law, and I/we also agree to pay, jointly and solidarily What applied here is the general rule that an action to foreclose a mortgage
12% per annum penalty charge, by way of liquidated damages must be limited to the account mentioned in the mortgage.
should this note be unpaid or is not renewed on due date.
xxx Construing the silence (as to the penalty with regard to the Mortgage
Should it become necessary to collect this note through an Contract) against PBCom, it can be fairly concluded that PBCom did not
attorney-at-law. I/we hereby expressly agree to pay, jointly and intend to include the penalties on the promissory notes in the secured
severally, ten per cent (10%) of the total amount due on this note as amount. This explains the finding by the trial court, as affirmed by the Court
attorneys fees which in no case shall be less than P100.00 of Appeals, that penalties and charges not due for want of stipulation in the
exclusive of all costs and fees allowed by law stipulated in the mortgage contract
contract of real estate mortgage if any there be.
MORTGAGE CONTRACT (does not provide for penalties) A mortgage must sufficiently describe the debt sought to be secured, which
description must not be such as to mislead or deceive, and an obligation is
Page !5 of !17
not secured by a mortgage unless it comes fairly within the terms of the
mortgage. In this case, the mortgage contract provides that it secures notes
and other evidences of indebtedness. Under the rule of ejusdem generis,
where a description of things of a particular class or kind is accompanied by
words of a generic character, the generic words will usually be limited to
things of a kindred nature with those particularly enumerated. . . . A penalty
charge does not belong to the species of obligations enumerated in the
mortgage, hence, the said contract cannot be understood to secure the
penalty.
DISPOSITION
WHEREFORE, finding no reversible error on the part of respondent Court of Appeals,
its challenged decision of 29 April 1994 in CAG. R. CV No. 38332 is hereby
AFFIRMED in toto.
Costs against the petitioner.
FACTS
- Spouses Don A. Alviar and Georgia B. Alviar, are the owners of a parcel of
land in San Juan covered by Transfer Certificate of Title (TCT) No. 438157
- They executed a deed of real estate mortgage in favor of Prudential Bank to
secure the payment of a loan worth P250,000.00 and executed a
promissory note (1st), PN BD#75/C-252, covering the said loan and
includes a dragnet clause1.
- Don Alviar subsequently executed another promissory note (2nd), PN
BD#76/C-345 for P2,640,000.00, secured by a hold-out on the mortgagors
foreign currency savings account with the bank.
- Spouses Alviar then executed for Donalco Trading, Inc., another
promissory note (3rd) PN BD#76/C-430 covering P545,000.000. The loan
is secured by Clean-Phase out which means that the temporary overdraft
- 1 "That for and in consideration of certain loans, overdraft and other credit accommodations obtained from the Mortgagee by the Mortgagor and/or ________________ hereinafter referred to, irrespective of number, as
DEBTOR, and to secure the payment of the same and those that may hereafter be obtained, the principal or all of which is hereby fixed at Two Hundred Fifty Thousand (P250,000.00) Pesos, Philippine Currency, as well as
those that the Mortgagee may extend to the Mortgagor and/or DEBTOR, including interest and expenses or any other obligation owing to the Mortgagee, whether direct or indirect, principal or secondary as appears in the
accounts, books and records of the Mortgagee, the Mortgagor does hereby transfer and convey by way of mortgage unto the Mortgagee, its successors or assigns, the parcels of land which are described in the list inserted
on the back of this document, and/or appended hereto, together with all the buildings and improvements now existing or which may hereafter be erected or constructed thereon, of which the Mortgagor declares that he/it is
the absolute owner free from all liens and encumbrances"
Page !6 of !17
incurred by Donalco Trading, Inc. with Prudential Bak is to be converted into - The parties intended the real estate mortgage to secure not only the
an ordinary loan in compliance with a Central Bank circular. P250,000.00 loan from the petitioner, but also future credit facilities and
- Prudential Bank then wrote Donalco Trading, Inc., informing the latter of its advancements that may be obtained by the respondents. The terms of the
approval of a straight loan of P545,000.00, the proceeds of which shall be above provision being clear and unambiguous, there is neither need nor
used to liquidate the outstanding loan of P545,000.00 temporary overdraft. excuse to construe it otherwise.
- Spouses Alviar then paid Prudential Bank P2,000,000.00, to be applied to - The subsequent loans obtained by the spouses Alviar were secured by other
the obligations of G.B. Alviar Realty and Development, Inc. and for the securities.
release of the real estate mortgage. (separate loan) - Under American jurisprudence, two schools of thought have emerged on this
- Prudential Bank moved for the extrajudicial foreclosure of the mortgage on question. One school advocates that a dragnet clause so worded as to be
the property covered by TCT No. 438157 (1st PN). Per the bank's broad enough to cover all other debts in addition to the one specifically
computation, respondents had the total obligation of P1,608,256.68, secured will be construed to cover a different debt, although such other debt
covering the three (3) promissory notes, to wit: PN BD#75/C-252 for is secured by another mortgage.
P250,000.00, PN BD#76/C-345 for P382,680.83, and PN BD#76/C-340 for - The contrary thinking maintains that a mortgage with such a clause will not
P545,000.00, plus assessed past due interests and penalty charges. secure a note that expresses on its face that it is otherwise secured as to its
- Spouses Alviar filed a complaint for damages with a prayer for the issuance entirety, at least to anything other than a deficiency after exhausting the
of a writ of preliminary injunction with RTC Pasig, claiming that they have security specified therein, such deficiency being an indebtedness within the
paid their principal loan secured by the mortgaged property, and thus the meaning of the mortgage, in the absence of a special contract excluding it
mortgage should not be foreclosed. from the arrangement.
- Prudential Bank averred that the payment of P2,000,000.00 was not a - The latter school represents the better position. The parties having
payment made by the spouses Alviar, but by G.B. Alviar Realty and conformed to the blanket mortgage clause or dragnet clause, it is reasonable
Development Inc., which has a separate loan with the bank secured by a to conclude that they also agreed to an implied understanding that
separate mortgage. subsequent loans need not be secured by other securities, as the
- RTC: Dismissed the complaint and ordered the Sheriff to proceed with the subsequent loans will be secured by the first mortgage. In other words, the
extra-judicial foreclosure but upon reconsideration, issued an order setting sufficiency of the first security is a corollary component of the dragnet
aside its earlier decision and awarded attorneys fees to respondents. clause.
- RTC found that only the P250,000.00 loan is secured by the mortgage on - But of course, there is no prohibition, as in the mortgage contract in issue,
the land covered by TCT No. 438157. On the other hand, the P382,680.83 against contractually requiring other securities for the subsequent loans.
loan is secured by the foreign currency deposit account of Don A. Alviar, Thus, when the mortgagor takes another loan for which another security was
while the P545,000.00 obligation was an unsecured loan, being a mere given it could not be inferred that such loan was made in reliance solely on
conversion of the temporary overdraft. the original security with the dragnet clause, but rather, on the new security
- The blanket mortgage clause relied upon by the bank applies only to future given. This is the reliance on the security test.
loans obtained by the mortgagors, and not by parties other than the said - Hence, based on the reliance on the security test, an inquiry whether the
mortgagors, such as Donalco Trading, Inc. second loan was made in reliance on the original security containing a
- CA: Affirmed the Order of the trial court but deleted the award of attorneys dragnet clause must be made.
fees. It ruled that while a continuing loan or credit accommodation based on - It has been held that in the absence of clear, supportive evidence of a
only one security or mortgage is a common practice in financial and contrary intention, a mortgage containing a dragnet clause will not be
commercial institutions, such agreement must be clear and unequivocal. extended to cover future advances unless the document evidencing the
- In the instant case, the parties executed different promissory notes agreeing subsequent advance refers to the mortgage as providing security therefor.
to a particular security for each loan. Thus, the appellate court ruled that the - It was therefore improper for petitioner in this case to seek foreclosure of the
extrajudicial foreclosure sale of the property for the three loans is improper. mortgaged property because of non-payment of all the three promissory
- The Court of Appeals, however, found that respondents have not yet paid the notes. While the existence and validity of the dragnet clause cannot be
P250,000.00 covered by PN BD#75/C-252 (1st) since the payment of denied, there is a need to respect the existence of the other security given.
P2,000,000.00 adverted to by respondents was issued for the obligations of - The foreclosure of the mortgaged property should only be for the
G.B. Alviar Realty and Development, Inc. P250,000.00 loan covered by PN BD#75/C-252, and for any amount not
covered by the security for the subsequent promissory note.
ISSUE/S - While the dragnet clause subsists, the security specifically executed for
1. W/N the blanket mortgage clause or the dragnet clause is valid subsequent loans must first be exhausted before the mortgaged property
can be resorted to.
RULING & RATIO - One other crucial point is that the mortgage contract, as well as the
2. YES (but not applicable to full extent in this case) promissory notes subject of this case, is a contract of adhesion.
- A blanket mortgage clause, also known as a dragnet clause, is one which is - The real estate mortgage in issue appears in a standard form, drafted and
specifically phrased to subsume all debts of past or future origins. Such prepared solely by the bank, and which, according to jurisprudence must be
clauses are carefully scrutinized and strictly construed. strictly construed against the party responsible for its preparation.
Page !7 of !17
- If the parties intended that the blanket mortgage clause shall cover
subsequent advancement secured by separate securities, then the same
should have been indicated in the mortgage contract.
- Even the promissory notes in issue were made on standard forms prepared
by the, and as such are likewise contracts of adhesion. Being of such nature,
the same should be interpreted strictly against the bank.
- The bank however, is not without recourse. Both the Court of Appeals and Castro, Jr. v. Court of Appeals
the trial court found that respondents have not yet paid the P250,000.00, and 250 SCRA 661
gave no credence to their claim that they paid the said amount when they Petitioner: Luis Castro, Jr., Marissa Castro, Ramon Castro, Mary Ann Castro,
paid petitioner P2,000,000.00. Thus, the mortgaged property could still be Catherine Castro and Antonio Castro.
properly subjected to foreclosure proceedings for the unpaid P250,000.00 Respondents: Court of Appeals and Union Bank of the Philippines
loan, and for any deficiency after subsequent securities has been exhausted,
subject of course to defenses which are available to the spouses. DOCTRINE
Improvement subsequently introduced to the encumbered property are considered to
form part of the mortgage only if so owned by the mortgagor. Such is NOT in the case
at bar.
DISPOSITION
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA- FACTS
G.R. CV No. 59543 is AFFIRMED. Cabanatuan City College obtained a loan from Bancom. In order to secure such,
Costs against petitioner. Cabanatuan mortgaged to Bancom 2 parcels of land within the school site.
SO ORDERED. - While the mortgage was subsisting, Cabanatuan leased to Castro a 10000
sqm. portion of the encumbered property where the latter eventually build a
residential house. Bancom was duly advised by Cabanatuan on the matter.
Cabanatuan defaulted and Bancom extrajudicially foreclosed on the
mortgaged property. It was then up for public auction where Bancom was the
only bidder.
Bancom filed with the RTC for an ex-parte Writ of Possession not only over the
land and school buildings but also the residential house constructed by Castro,
which was subsequently issued.
Castro while refusing to leave, averred that being the owners of the residential
house could not be ousted simply on the basis of a writ of possession.
RTC ruled in favor of Bancom pursuant to Article 2127.
2. CA affirmed the decision.
ISSUE/S
W/N improvements made by a lessee on an mortgaged property forms part of the
accessions and improvements recited in Article 2127 NO
PROVISIONS
Article 2127. - The mortgage extends to the natural accessions, to the improvements,
growing fruits, and the rents or income not yet received when the obligation becomes
due, and to the amount of the indemnity granted or owing to the proprietor from the
insurers of the property mortgaged, or in virtue of expropriation for public use, with the
declarations, amplifications and limitations established by law, whether the estate
remains in the possession of the mortgagor, or it passes into the hands of a third
person.
2 "All obligations of the Borrower and/or Mortgagor, its renewal, extension, amendment or novation irrespective of whether such obligations as renewed, extended, amended or novated are in the nature of new, separate or
additional obligations;
All other obligations of the Borrower and/or Mortgagor in favor of the Mortgagee, executed before or after the execution of this document whether presently owing or hereinafter incurred and whether or not arising from or
connection with the aforesaid loan/Credit accommodation; x x x."
Page 12
! of !17
- In foreclosures, the mortgaged property is subjected to the proceedings for Spouses having defaulted in the payment of their loans, L&R Corp initiated
the satisfaction of the obligation. Once the proceeds from the sale of the extrajudicial foreclosure proceedings, the mortgaged properties were sold to
property are applied to the payment of the obligation, the obligation is L&R Corp as the only bidder.
already extinguished. When L&R Corp presented its corresponding Certificate of Sale to QC
- Consequently, since the Real Estate Mortgage Contract is already Register of Deeds for registration, it learned for the first tie of the prior sale of
extinguished, the bank can no longer rely on it or invoke its provisions, properties made by the Spouses to PWHAS upon seeing the inscription at
including the dragnet clause stipulated therein. It follows that the bank the back of the Certificates of Title. Thus, it wrote a letter to the Register of
cannot refer to the 18% annual interest charged in Promissory Note No. Deeds of QC requesting for the cancellation of the annotation regarding the
0143, an obligation allegedly covered by the terms of the Contract. sale to PWHAS.
- Neither can the bank use the consummated contract to collect on the rest of L&R Corp invoked a provision in its mortgage contract with the spouses
the obligations, which were not included when it earlier instituted the stating that the mortgagees prior consent was necessary in case of
foreclosure proceedings. It cannot be allowed to use the same security to subsequent encumbrance or alienation of the subject properties. It argued
collect on the other loans. To do so would be akin to foreclosing an already that since the sale to PWHAS was made without prior written consent, the
foreclosed property. same should not have been registered and/or annotated.
- Despite the extinguishment of the Real Estate Mortgage Contract, Tuble had A complaint for Quieting of Title, Annulment of Title and Damages with
the right to redeem the security by paying the redemption price. preliminary injunction was filed by the spouses Litonjua and PWHAS against
- The right of redemption of foreclosed properties is a statutory privilege L&R Corp CFI QC The lower court rendered its Decision dismissing the
- Consequently, the bank cannot alter that right by imposing additional Complaint upon its finding that the sale between the spouses Litonjua and
charges and including other loans. Verily, the freedom to stipulate the terms PWHAS was null and void and unenforceable against L & R Corporation and
and conditions of an agreement is limited by law. that the redemption made was also null and void.
On appeal, the decision of the trial court was set aside by the Court of
Appeals in its Decision dated June 22, 1994, on the ground that the sale
made to PWHAS as well as the redemption effected by the spouses Litonjua
were valid. However, the same was subsequently reconsidered
Hence this petition.
ISSUE/S
May a mortgage contract provide that the mortgagor cannot sell the mortgaged
property without first obtaining the consent of the mortgagee and that, otherwise, the
sale made without the mortgagees consent shall be invalid - NO
Litonjua v. L&R Corp
GR # 130722 | December 9, 1999 RULING & RATIO
Petitioner: Sps. Reynaldo K. Litonjua and Erlinda P. Litonjua and Phil. White House 1. No.
Auto Supply, Inc.,
Respondent: L & R Corporation, Vicente M. Coloyan In His Capacity as Acting Insofar as the validity of the questioned stipulation prohibiting the mortgagor from
Registrar of The Register of Deeds Of Quezon City Thru Deputy Sheriff Roberto R. selling his mortgaged property without the consent of the mortgagee is concerned,
Garcia therefore, the ruling in the Tambunting case (Nota Bene: Stipulation prohibiting
New Civil Code, Art. 2130 subsequent mortgage or encumbrance is ALLOWED. What is prohibited is stipulation
prohibiting sale or conveyance by mortgagor) is still the controlling law. Indeed, we
DOCTRINE are fully in accord with the pronouncement therein that such a stipulation violates
Stipulation prohibiting the mortgagor from selling his mortgaged property without the Article 2130 of the New Civil Code. Both the lower court and the Court of Appeals in
consent of the mortgagee violates Article 2130 of the New Civil Code; The sale made its Amended Decision rationalize that since paragraph 8 of the subject Deed of
by the spouses Litonjua to PWHAS, notwithstanding the lack of prior written consent Real Estate Mortgage contains no absolute prohibition against the sale of the property
of L & R Corporation, is valid. mortgaged but only requires the mortgagor to obtain the prior written consent
of the mortgagee before any such sale, Article 2130 is not violated thereby. This
FACTS observation takes a narrow and technical view of the stipulation in question without
Spouses Litonjua obtained loans from L&R Corp in the aggregate sum of taking into consideration the end result of requiring such prior written consent.
P400,000. Loans were secured by a mortgage constituted by spouses upon
their two parcels of land and improvements thereon
Spouses sold to Philippine White House Auto Supply, Inc. (PWHAS) the True, the provision does not absolutely prohibit the mortgagor from selling his
parcels of land they had previously mortgaged to L&R Corp. mortgaged property; but what it does not outrightly prohibit, it nevertheless achieves.
For all intents and purposes, the stipulation practically gives the mortgagee the sole
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prerogative to prevent any sale of the mortgaged property to a third party. The IAC issued a resolution ordering that the recors are remanded
mortgagee can simply withhold its consent and thereby, prevent the mortgagor from
selling the property. This creates an unconscionable advantage for the mortgagee to trial court for purposes of determining the deficiency due to
and amounts to a virtual prohibition on the owner to sell his mortgaged property. In plaintiff. It also said that the action in the trial court cannot
other words, stipulations like those covered by paragraph 8 of the subject Deed of
Real Estate Mortgage circumvent the law, specifically, Article 2130 of the New Civil
be said for recovery of deficiency because it was for the whole
Code. Being contrary to law, paragraph 8 of the subject Deed of Real Estate amount and not deficiency.
Mortgage is not binding upon the parties. Accordingly, the sale made by the spouses MR filed by Caltex was denied. Hence, this petition.
Litonjua to PWHAS, notwithstanding the lack of prior written consent of L & R
Corporation, is valid.
Issue: Whether or not the mere filing of a collection suit for
DISPOSITION
WHEREFORE, the Decision appealed from is hereby AFFIRMED with modifications
the recovery of the debt secured by real estate mortgage
constitutes waiver of the other remedy of foreclosure.
NOTES
1. Issue as to right of first refusal
a. A stipulation on a right of first refusal is allowed. There is nothing Held: It is of no moment that the collection suit was filed
wrong in a stipulation granting the mortgagee the right of first ahead, what is determinative is the fact that the foreclosure
refusal over the mortgaged property in the event the mortgagor
decides to sell the same. While the mortgagor has every right to sell
proceedings ended even before the decision in the collection
the mortgaged property without securing the consent of the suit was rendered. As a matter of fact, CALTEX informed the
mortgagee, he has the obligation under a right of first refusal trial court that it had already consolidated its ownership over
provision to notify the mortgagee of his intention to sell the property
and give him priority over other buyers. A sale made in violation of the property, in its reply to the opposition of Manzana to the
the mortgagees contractual right of first refusal in rescissible. motion for execution pending appeal filed by it.
The collection suit filed before the trial court cannot be
Caltex v. IAC and Herbert Manzana considered as a deficiency judgment because a deficiency
judgment has been defined as one for the balance of the
Facts: Manzana purchased on credit petroleum products from indebtedness after applying the proceeds of the sale of the
Caltex. Manzanas indebtedness amounted to P361,218.66. mortgaged property to such indebtedness and is necessarily
Manzana executed a Deed of First Mortgage in favour of Caltex filed after the foreclosure proceedings. It is significant to note
over a parcel of land in Province of Camarines Norte. Caltex that the judgment rendered by the trial court was for the full
sent Manzana statements of account and later demanded amount of the indebtedness and the case was filed prior to the
payment of his entire debts. Manzana failed to pay, Caltex foreclosure proceedings.
filed a complaint before the RTC for the entire amount due. A suit for the recovery of the deficiency after the foreclosure
Caltex extrajudicially foreclosed the mortgaged property. The of a mortgage is in the nature of a mortgage action because its
mortgaged property was sold at auction to Caltex, who was purpose is precisely to enforce the mortgage contract; it is
the only bidder, for P20,000. The foreclosure was allegedly upon a written contract and upon an obligation of Manzana to
known by Manzana only 10 years later when such fact was pay the deficiency which is created by law (see Development
manifested by Caltex in its reply to the opposition of Manzana Bank of the Philippines v. Tomeldan et al., G.R. No. 51269,
to the motion for execution pending appeal. November 17, 1980, 101 SCRA 171). Therefore, since more
RTC ordered Manzana to pay Caltex the amount of P353,218.66 than ten (10) years have elapsed from the time the right of
after deducting the amount paid by Traders Insurance and action accrued, CALTEX can no longer recover the deficiency
Surety Company on its surety bond. IAC affirmed the RTC from Manzana.
decision in toto. Manzana filed an MR.
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- Bank of America NT & SA (BANTSA) is an international
banking and financing institution duly licensed to do
business in the Philippines, organized and existing under
and by virtue of the laws of the State of California,
United States of America while private respondent
American Realty Corporation (ARC) is a domestic
corporation.
- Bank of America International Limited (BAIL), on the
other hand, is a limited liability company organized and
existing under the laws of England.
- BANTSA and BAIL on several occasions granted three
major multi-million United States (US) Dollar loans to
the following corporate borrowers: (1) Liberian
Transport Navigation, S.A.; (2) El Challenger S.A.; and
(3) Eshley Compania Naviera S.A.
o all of which are existing under and by virtue of
the laws of the Republic of Panama and are
Bank Of America v. American Realty corp (Short title) foreign affiliates of private respondent.
GR # 133876 | 321 SCRA 659 | Date December 29, 1999 - Due to the default in the payment of the loan
Petition: For certiorari Petitioner: BANK OF AMERICA, NT and amortizations, BANTSA and the corporate borrowers
SA Respondent: AMERICAN REALTY CORPORATION and COURT signed and entered into restructuring agreements. As
OF APPEALS additional security for the restructured loans, private
respondent ARC as third party mortgagor executed two
DOCTRINE real estate mortgages,4 dated 17 February 1983 and 20
Remedies available to the mortgage creditor are deemed July 1984, over its parcels of land including
alternative and not cumulative. Notably, an election of one improvements thereon, located at Barrio Sto. Cristo,
remedy operates as a waiver of the other. For this purpose, a San Jose Del Monte, Bulacan
remedy is deemed chosen upon the filing of the suit for - Eventually, the corporate borrowers defaulted in the
collection or upon the filing of the complaint in an action for payment of the restructured loans prompting petitioner
foreclosure of mortgage, pursuant to the provision of Rule 68 BANTSA to file civil actions5 before foreign courts for
of the 1997 Rules of Civil Procedure. As to extrajudicial the collection of the principal loan.
foreclosure, such remedy is deemed elected by the mortgage - On 16 December 1992, petitioner BANTSA filed before
creditor upon filing of the petition not with any court of the Office of the Provincial Sheriff of Bulacan,
justice but with the Office of the Sheriff of the province where Philippines, an application for extrajudicial foreclosure6
the sale is to be made, in accordance with the provisions of of real estate mortgage.
Act No. 3135, as amended by Act No. 4118. - On 12 February 1993, private respondent filed before
the Pasig Regional Trial Court, Branch 159, an action for
FACTS damages8 against the petitioner, for the latters act of
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foreclosing extrajudicially the real estate mortgages judgment in the collection suit is required for the rule
despite the pendency of civil suits before foreign courts on waiver to apply.
for the collection of the principal loan. - In our jurisdiction, the remedies available to the
- Petitioners answer by saying that The plaintiff, being a mortgage creditor are deemed alternative and not
mere third party mortgagor and not a party to the cumulative. Notably, an election of one remedy
principal restructuring agreements, was never made a operates as a waiver of the other. For this purpose, a
party defendant in the civil cases filed in Hongkong and remedy is deemed chosen upon the filing of the suit for
England, There is actually no civil suit for sum of collection or upon the filing of the complaint in an
money filed in the Philippines since the civil actions action for foreclosure of mortgage, pursuant to the
were filed in Hongkong and England. As such, any provision of Rule 68 of the 1997 Rules of Civil Procedure.
decisions (sic) which may be rendered in the As to extrajudicial foreclosure, such remedy is deemed
abovementioned courts are not (sic) enforceable in the elected by the mortgage creditor upon filing of the
Philippines unless aseparate action to enforce the petition not with any court of justice but with the
foreign judgments is first filed in the Philippines, Office of the Sheriff of the province where the sale is to
pursuant to Rule 39, Section 50 of the Revised Rules of be made, in accordance with the provisions of Act No.
Cour. 3135, as amended by Act No. 4118.
- Private respondent ARC constituted real estate
ISSUE/S mortgages over its properties as security for the debt of
1. W/N a mortgage-creditor waive its remedy to foreclose the the principal debtors. By doing so, private respondent
real estate mortgage constituted over a third party subjected itself to the liabilities of a third party
mortgagors property situated in the Philippines by filing an mortgagor. Under the law, third persons who are not
action for the collection of the principal loan before foreign parties to a loan may secure the latter by pledging or
courts YES mortgaging their own property. Notwithstanding, there
is no legal provision nor jurisprudence in our jurisdiction
PROVISIONS which makes a third person who secures the fulfillment
Palagay nalang nung provision of anothers obligation by mortgaging his own property,
to be solidarily bound with the principal obligor. The
RULING & RATIO signatory to the principal contractloanremains to be
1. YES primarily bound. It is only upon default of the latter
- Contrary to petitioners arguments, we therefore that the creditor may have recourse on the mortgagors
reiterate the rule, for clarity and emphasis, that the by foreclosing the mortgaged properties in lieu of an
mere act of filing of an ordinary action for collection action for the recovery of the amount of the loan.
operates as a waiver of the mortgage-creditors remedy - In this case, the petitioners are have deemed to have
to foreclose the mortgage. By the mere filing of the waied their claim over the third party mortgage by filing
ordinary action for collection against the principal collection suits against the principal debtors.
debtors, the petitioner in the present case is deemed to
have elected a remedy, as a result of which a waiver of DISPOSITION
the other necessarily must arise. Corollarily, no final
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WHEREFORE, premises considered, the instant petition is
DENIED for lack of merit. The decision of the Court of Appeals
is hereby AFFIRMED with MODIFICATION of the amount awarded
as exemplary damages. Accordingly, petitioner is hereby
ordered to pay private respondent the sum of P99,000,000.00
as actual or compensatory damages; P50,000.00 as exemplary
damage and the costs of suit. SO ORDERED.
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