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Section 1. Any provision of law to the contrary notwithstanding, private real property
may be mortgaged in favor of any individual, corporation, or association, but the
mortgagee or his successor in interest, if disqualified to acquire or hold lands of the
public domain in the Philippines, shall not take possession of the mortgaged property
during the existence of the mortgage and shall not take possession of the mortgaged
property except after default and for the sole purpose of foreclosure, receivership,
enforcement or other proceedings and in no case for a period of more than 5 years from
actual possession and shall not bid or take part in any sale of such real property in case
of foreclosure: Provided, that said mortgagee or successor in interest may take
possession of said property after default in accordance with the prescribed judicial
procedures for foreclosure and receivership and in no case exceeding 5 years from
actual possession.
Section 2. All laws, orders, or regulations, or parts thereof inconsistent with the
provisions of this Act, are repealed or modified accordingly.
• The right to foreclose the mortgage and to have the property seized and sold with
a view to applying the proceeds to the payment of the principal obligation.
• A mortgage contract may contain an acceleration clause—on occasion of the
mortgagor’s default, the whole sum remaining unpaid automatically becomes due
and payable.
• Essence of mortgage contract—property has been identified and separated from
a mass of the property of the mortgagor to secure the payment of a principal
obligation.
• Once the proceeds have been applied to the payment of the principal obligation,
the debtor cannot anymore be asked to pay unless there is deficiency.
KINDS OF FORECLOSURE
1. JUDICIAL FORECLOSURE
A judicial foreclosure is done by filing a complaint in the Regional Trial Court of
the place where the property is located. The judge renders judgment, ordering
the mortgagor to pay the debt within a period of 90–120 days. If the debt is not
paid within the said period, a foreclosure sale satisfies the judgment.
JUDICIAL FORECLOSURE UNDER RULE 68, RULES OF COURT
1) The mortgagee should file a petition for judicial foreclosure in the court
which has jurisdiction over the area where the property is situated.
2) The court will conduct a trial. If, after trial, the court finds merit in the
petition, it will render judgment ordering the mortgagor/debtor to pay the
obligation within a period not less than 90 nor more than 120 days from
the finality of judgment.
3) Within this 90 to 120 day period, the mortgagor has the chance to pay the
obligation to prevent his property from being sold. This is called the
EQUITY OF REDEMPTION PERIOD.
4) If mortgagor fails to pay within the 90-120 days given to him by the court,
the property shall be sold to the highest bidder at public auction to satisfy
the judgment.
5) There will be a judicial confirmation of the sale. After the confirmation of
the sale, the purchaser shall be entitled to the possession of the property,
and all the rights of the mortgagor with respect to the property are severed
or terminated. The equity of redemption period actually extends until the
sale is confirmed. Even after the lapse of the 90 to 120 day period, the
mortgagor can still redeem the property, so long as there has been no
confirmation of the sale yet. Therefore, the equity of redemption can be
considered as the right of the mortgagor to redeem the property BEFORE
the confirmation of the sale.
6) After the confirmation of the sale, the mortgagor does not have a right to
redeem the property anymore. This is the general rule in judicial
foreclosures – there is no right of redemption after the sale is confirmed.
2. EXTRAJUDICIAL FORECLOSURE
In an extrajudicial foreclosure, the mortgagee need not initiate an action in court
but may simply file an application before the Clerk of Court to secure attendance
of the Sheriff who conducts the public sale. This is done pursuant to a power of
sale.
EXTRAJUDICIAL FORECOSURE UNDER REPUBLIC ACT 3135/4118 AND SC
ADMINISTRATIVE CIRCULAR
1. WHERE AN EXTRAJUDICIAL FORECLOSURE SALE SHOULD BE
DONE? Sale cannot be made legally outside the city or province wherein
the property sold is situated. In case the place has been stipulated, it shall
be made in the municipal building of the said place.
3. PUBLIC AUCTION/SALE
a. Time shall be between 9AM and 4PM. It shall be made in the
direction of the sheriff of the province, the justice or auxiliary justice
of the peace of the municipality, or of the notary public of the
municipality, who shall be compensated with P5 for each day of
actual work or performance in addition to his expenses.
b. Anyone may bid at the sale, unless there are stipulations in the
agreement.
4. POSSESSION
a. Upon foreclosure, if the mortgagor is in possession of the property,
he will retain possession during the redemption period—1 year from
the date of sale.
b. If the winning bidder wants possession during the redemption
period, he may execute a bond in the amount equivalent to the use
of the property for 12 months, to indemnify the debtor in case it be
shown that the sale was made without violating the mortgage or
without complying with the requirements of the Act. Upon approval,
a writ of possession will be issued in his favor.
c. If the winning bidder is able to secure possession, the mortgagor
may petition that the sale is set aside and the writ of possession be
cancelled on the ground that he wasn't in default or that the sale
wasn't made in accordance with Act 3135. This must be filed within
30 days from issuance of the writ of possession.
5. RIGHT OF REDEMPTION
a. The debtor, his successors-in-interest, or any judicial creditor or
judgment creditor of said debtor, or any person having a lien on the
property subsequent to the mortgage or deed of trust under which
the property is sold, may redeem the same at any time WITHIN
THE TERM OF 1 YEAR FROM AND AFTER THE DATE OF THE
SALE and such will be governed by the Rules of Court;
b. When the property is redeemed after the purchaser has been given
possession, the redeemer is entitled to deduct from the price of
redemption any rentals that said purchaser may have collected in
case the property or any part thereof was rented. If the property
was used as his own dwelling, it being town property, or used it
gainfully, it being rural property, the redeemer may deduct from the
price the interest of 1% per month provided in the Rules of Court.
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.
NOTES:
i. For judicial foreclosure, the redemption period is within one year. For
extrajudicial, its 90 days from sale or registration.
ii. The purpose is to give concession to the banks. Banks cannot get
properties mortgaged by those in financial distress.
iii. The redemption price would be the mortgaged obligation plus the interest
as stipulated in the original obligation. Compare this with judicial
foreclosure wherein the redemption price is the original price. In this case,
you have to pay more when redeeming from a bank.
iv. There is immediate possession
v. A motion to enjoin would not be entertained unless secured by a bond.
vi. Court will fix the amount of the bond. Normally, this would be the liability of
the bank plus costs. This remedied the loopholes in Act 3135—protects
the bank during foreclosures. This makes it hard to secure injunctions and
it shortens the redemption period.