Professional Documents
Culture Documents
Larry P. Ignacio
A real estate mortgage is a contract in which the debtor guarantees to the creditor the
fulfillment of a principal obligation, subjecting for the faithful compliance therewith a real
property in case of non-fulfillment of said obligation at the time stipulated (Manresa).
Foreclosure of mortgage
Demand, however, is necessary for default to exist and which gives the right to collect
debt and foreclose the mortgage. The maturity dates in the promissory notes or the acceleration
clause (“[i]n case of non-payment of this note or any portion of it on demand, when due, on
account of this note, the entire obligation shall become due and demandable. . .”) therein stated
only indicate when payment can be demanded. It is the refusal to pay after demand that gives
the creditor a cause of action against the debtor (DBP v. Licuanan, GR No. 150097, 26 February
2007). Default commences upon judicial or extrajudicial demand (UCPB vs. Beluso, G.R. No.
159912, August 17, 2007). Demand, however, is not necessary where the law or the obligations
expressly declare it unnecessary (Premiere Dev’t. Bank v. Central Surety & Insurance Company,
Inc., 579 SCRA 359, 13 February 2009).
reason of a cause imputable to the debtor. There are three requisites necessary for a finding of
default. First, the obligation is demandable and liquidated; second, the debtor delays
performance; third, the creditor judicially or extrajudicially requires the debtor’s performance
(Selegna Management & Dev’t. Corp. v. UCPB, GR No. 165662, 03 May 2006).
A stipulation in a deed of mortgage which states that upon failure of the mortgagor to pay
the debt within the agreed period, the land covered by the mortgage shall become property of
the mortgagee or the transaction shall become a sale and the consideration shall be considered
as payment of the price of the land is pactum commissorium and is null and void (Reyes v.
Nebreja, 98 Phil 639 [1956]). Such stipulation is void since it enables the mortgagee to acquire
ownership of the mortgaged property without need of foreclosure (Olea v. CA, 247 SCRA 274
[1995]); it is a nullity being contrary to the provisions of Article 2088 of the Civil Code (Lumayag
Under Act 3135, as amended and settled jurisprudence, the following essential
requirements must be met:
1. There must be a special power of attorney inserted in or attached to the real estate
mortgage authorizing the sale pursuant to the provisions of Act, 3135, as amended (Section 1;
Paguyo v. Gatbunton, 523 SCRA 156 [2007]).
2. The sale must be made within the province where the property or any part thereof is
located, unless otherwise stipulated (Section 2; Supena v. de la Rosa, 267 SCRA 1).
3. There must be a notice of sale to be posted in three public places of the municipality
or city where the property is situated. If the property is worth more than P400.00, the notice
shall also be published once a week for three consecutive weeks in a newspaper of general
circulation in the city or municipality (Section 3).
4. The sale shall be made at public auction between the hours of nine in the morning
and four in the afternoon, and shall be under the direction of the sheriff of the province, the
justice or auxiliary justice of the peace (now municipal judge) of the municipality in which such
sale shall be made, or a notary public of said municipality (Section 4).
In Administrative Matter No. 99-10-05-0 (as further amended on 07 August 2001), the
Supreme Court prescribed the following procedures in the extra-judicial foreclosure of mortgage:
1. All applications for extra-judicial foreclosure of mortgage whether under the direction of the
sheriff or a notary public, pursuant to Act 3135, as amended, shall be filed with the Executive
Judge, through the Clerk of Court who is also the Ex-Officio Sheriff.
2. Upon receipt of an application for extra-judicial foreclosure of mortgage, it shall be the duty
of the Clerk of Court to:
a) receive and docket said application and to stamp thereon the corresponding file number,
date and time of filing;
b) collect the filing fees therefore pursuant to Rule 141, Section 7(c) as amended by A.M. No.
00-2-01-SC, and issue the corresponding official receipt;
c) examine, in case of real estate mortgage foreclosure, whether the applicant has complied
with all the requirements before the public auction is conducted under the direction of the sheriff
or a notary public, pursuant to Sec. 4 of Act 3135, as amended;
d) sign and issue the certificate of sale, subject to the approval of the Executive Judge, or in his
absence, the Vice-Executive Judge. No certificate of sale shall be issued in favor of the highest
bidder until all fees provided in the aforementioned sections and in Rule 141, Section 9(1) as
amended by A.M. 00-2-01-SC, shall have been paid; Provided, that in no case shall the amount
payable under Rule 141, Section 9(1), as amended, exceed P100,000.00;
e) after the certificate of sale has been issued to the highest bidder, keep the complete records,
while awaiting any redemption within a period of one (1) year from date of registration of the
certificate of sale with the Register of Deed concerned, after which, the records shall be
archived.
Notwithstanding the foregoing provision, juridical persons whose property is sold pursuant
to an extrajudicial foreclosure, shall have the right to redeem the property until, but not
after, the registration of the certificate of foreclosure sale which in no case shall be more than
three (3) months after foreclosure, whichever is earlier, as provided in Section 47 of Republic
Act No. 8791 (as amended, Res. of August 7, 2001)
Where the application concerns the extrajudicial foreclosure of mortgages of real estates and/or
chattels in different locations covering one indebtedness, only one filing fee corresponding to
such indebtedness shall be collected. The collecting Clerk of Court shall, apart from the official
receipt of the fees, issue a certificate of payment indicating the amount of indebtedness, the
filing fees collected, the mortgages sought to be foreclosed, the real estates and/or chattels
mortgaged and their respective locations, which certificate shall serve the purpose of having the
application docketed with the Clerks of Court of the places where the other properties are
located and of allowing the extrajudicial foreclosures to proceed thereat.
3. The notices of auction sale in extrajudicial foreclosure for publication by the sheriff or by a
notary public shall be published in a newspaper of general circulation pursuant to Section 1,
Presidential Decree No. 1079, dated January 2, 1977, and non-compliance therewith shall
constitute a violation of Section 6 thereof.
4. The Executive Judge shall, with the assistance of the Clerk of Court, raffle applications for
extrajudicial foreclosure of mortgage under the direction of the sheriff among all sheriffs,
including those assigned to the Office of the Clerk of Court and Sheriffs IV assigned in the
branches.
5. The name/s of the bidder/s shall be reported by the sheriff or notary public who conducted
the sale to the Clerk of Court before the issuance of the certificate of sale.
Issue: Whether a sale a public auction, to be valid, must be conducted the whole day from 9:00
a.m. until 4:00 p.m. of the scheduled auction day. Section 4 of Act 3135 provides that the sale
must take place between the hours of nine in the morning and four in the afternoon.
The word “between” ordinarily means “in time interval that separates.” Thus, “between the
hours of nine in the morning and four in the afternoon” merely provides a time frame within
which an auction sale may be conducted.
Therefore, a sale at public auction held within the intervening period provided by law ( i.e., at
any time from 9:00 a.m. until 4:00 p.m.) is valid, without regard to the duration or length of
time it took the auctioneer to conduct the proceedings (PNB v. Cabatingan, 557 SCRA 426
[2008]).
Act 3135 regulates the extrajudicial sale of mortgaged real properties by prescribing a procedure
which effectively safeguards the rights of both debtor and creditor (ibid.).
A reading of the above provisions gives us the impression that the publication of extra-
judicial sales under Act, 3135, if the property is worth more than four hundred pesos, shall be in
a newspaper of general circulation in the city or municipality where the property lies. Hence, if
the property in question is located in Quezon City, it logically follows that the auction sale of said
property should be published in a newspaper of general circulation that is edited and published
in Quezon City.
However, such application and/or interpretation are too narrow and very limited that it
virtually defeats the purpose and intention of the law. If this is the case, the leading dailies, like
the Philippine Daily Inquirer (PDI) (with head office in Makati City) and Manila Bulletin (with
head office in Manila), which enjoys a wide circulation nationwide, cannot publish notice of extra-
judicial sales of properties located in Quezon City simply because it is outside their place of
publication.
What is important is that the newspaper is of general circulation in the place where the
property/ies to be foreclosed is/are located.
In a line of cases, the Highest Court declared that publication of the extra-judicial sale in a
newspaper of general circulation is more than sufficient compliance with the notice-posting
requirement of the law (Fortune Motors v. Metrobank, 265 SCRA 72; Cristobal v. CA, 328 SCRA
256; Concepcion v. CA, 274 SCRA 614; Bohanan v. CA, 256 SCRA 355; Olizon v. CA, 236 SCRA
148; Gravina v. CA 220 SCRA 178). PD 1079 and Act 3135 do not require that the newspaper
which publishes judicial notices should be a daily newspaper (Fortune Motors, 265 SCRA
72).
An extra-judicial foreclosure sale is an action in rem and thus requires only notice by
publication and posting to bind the parties in the foreclosed property. No personal notice is
necessary (Langkaan Realty Dev’t., supra; Bohanan v. CA, supra; Fortune Motors, 265 SCRA
72).
A certificate of posting is not required, much less considered indispensable, for the validity
of a foreclosure sale under Act 3135 – it is significant only in the matter of providing compliance
with the required posting of notice (Bohanan v. CA, 256 SCRA 355; Olizon v. CA, 256 SCRA 355;
Cristobal v. CA, 328 SCRA 256 [2000]; DBP v. CA, GR No. 125838, 10 June 2003).
The failure to post a notice is not per se a ground for invalidating the sale provided that
the notice thereof is duly published in a newspaper of general circulation (DBP v. Aguirre, GR No.
144877, 07 September 2001).
However, the failure to publish the notice of auction sale as required by the statute
constitutes a jurisdictional defect which invalidates the sale (DBP v. Aguirre, GR No. 144877, 07
Sept. 2001).
The object of a notice of sale is to inform the public of the nature and condition of the
property to be sold, and inform of the time, place and terms of the sale. Notices are given for
the purpose of securing bidders and to prevent a sacrifice of the property (Olizon v. CA, 236
SCRA 148). Publication, therefore, is required to give the foreclosure sale a reasonably wide
publicity such that those interested might attend the public sale (Ouano v. CA, 129279, 04
March 2003).
3. The notice and publication requirement are mandatory and failure to comply is a
jurisdictional defect that vitiates the foreclosure auction sale.
Non-compliance with the notice and publication requirement in Act 3135, as amended is a
jurisdictional defect that vitiates the auction sale (Tambunting v. CA, 167 SCRA 16).
The failure to publish the notice of auction sale as required by the statute constitutes a
jurisdictional defect which invalidates the sale (DBP v. Aguirre, GR No. 144877, 07 September
2001).
The right of a bank to foreclose a mortgage upon the mortgagor’s failure to pay his
obligation must be exercised according to its clear mandate and every requirement of the law
must be complied with, lest the valid exercise of the right end. The valid exercise of the right
ends when the right disappears, and it disappears when it is abused especially to the prejudice
of others (PNB v. Nepomuceno, supra.).
4. The parties have no right to waive the notice and publication requirements. There is no
estoppel in case of an agreement to dispense with the notice and publication requirements.
The parties have absolutely no right to waive the posting and publication requirements
(PNB v. Nepomuceno Productions, Inc., GR No. 139479, 27 December 2002; Ouano v. CA, GR
No. 129279, 04 March 2003). Foreclosure auction sale is imbued with public policy
considerations and any waiver on the notice and publication requirements would be inconsistent
with the intent and letter of Act 3135, as amended (PNB v. Nepomuceno, supra.).
To request postponement of the sale is one thing; to request it without need of
compliance with the statutory requirements is another. Therefore, a party is not estopped from
questioning the validity of the foreclosure sale for non-compliance with Act 3135 (PNB v.
Nepomuceno, supra.).
Publication, therefore, is required to give the foreclosure sale a reasonably wide publicity
such that those interested might attend the public sale. To allow the parties to waive this
jurisdictional requirement would result in converting into a private sale what ought to be a public
auction (Ouano v. CA, GR No. 129279, 04 March 2003).
In the case of DPB v. CA, GR No. 125838, 10 June 2003, the Supreme Court clarified that:
“The form of the notice of extrajudicial sale is now prescribed in Circular No. 7-2002
issued by the Office of the Court Administrator on 22 January 2002. Section 4(a) of Circular No.
7-2002 provides that: x x x The last paragraph of the prescribed notice of sale allows the holding
of a rescheduled auction sale without reposting or republication of the notice. However, the
rescheduled auction sale will only be valid if the rescheduled date of auction is clearly specified
in the prior notice of sale. The absence of this information in the prior notice of sale will render
the rescheduled auction sale void for lack of reposting or republication. If the notice of auction
sale contains this particular information, whether or not the parties agreed to such rescheduled
date, there is no more need for the reposting or republication of the notice of the rescheduled
auction sale.”
Act 3135 only requires (1) the posting of notices of sale in three public places, and (2) the
publication of the same in a newspaper of general circulation. Personal notice to the mortgagor
is not necessary. Nevertheless, the parties to the mortgage contract are not precluded from
exacting additional requirement (Metrobank v. Wong, GR No. 120859, 26 June 2001;
Concepcion v. CA, 274 SCRA 614). Thus, while publication of the foreclosure proceedings in the
newspaper of general circulation was complied with, personal notice is still required when the
same was mutually agreed upon by the parties as additional condition of the mortgage
contract. Failure to comply with such stipulation is fatal (Community Savings & Loan
Association, Inc. v. CA, 153 SCRA 564; Grand Farms Inc. v. CA, 193 SCRA 748; Concepcion v.
CA, GR No. 122079, 27 June 1997).
The failure to publish the notice of auction sale as required by the statute constitutes a
jurisdictional defect which invalidates the sale (DBP v. Aguirre, GR No. 144877, 07 September
2001).
“The Act only requires (1) the posting of notices of sale in three public places, and (2) the
publication of the same in a newspaper of general circulation. Personal notice to the mortgagor
is not necessary. Nevertheless, the parties to the mortgage contract are not precluded from
exacting additional requirements. In this case, petitioner and respondent in entering into a
contract of real estate mortgage, agree inter alia:
“all correspondence relative to this mortgage, including demand letters, summonses,
subpoenas, or notifications of any judicial or extrajudicial action shall be sent to the
MORTGAGOR at 40-42 Aldeguer St., Iloilo City, or at the address that may hereafter be given in
writing by the MORTGAGOR to the MORTGAGEE.”
Precisely, the purpose of the foregoing stipulation is to apprise respondent of any action
which petitioner might take on the subject property, thus according him the opportunity to
safeguard his rights. When petitioner failed to send the notice of foreclosure sale to respondent,
he committed a contractual breach sufficient to render the foreclosure sale on November 23,
1981 null and void.” (Metrobank v. Wong, 359 SCRA 608 [2001])
REDEMPTION
Redemption period
After the issuance of the certificate of sale to the highest bidder, this shall be registered with the
Register of Deeds where the property is located. At this point, the remaining right of the
mortgagor/debtor is to redeem the property.
In case the mortgagor is a juridical person Section 47, RA 8791, the General Banking Law of
2000 provides: “Notwithstanding Act 3135, juridical persons x x x 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 the foreclosure, whichever is earlier.”
Redemption period not suspended by TRO or a separate civil case. The period to redeem
was not suspended by the institution of a separate civil case for annulment of mortgage,
foreclosure, etc. (Sumerariz v. DBP, 21 SCRA 1374; Unionbank v. CA, GR No. 134068, 25
June 2001) and NEITHER is it suspended by the issuance of a TRO by the courts (Peoples
Financing Corp. v. CA, 192 SCRA 34).
Redemption price
In case of redemption, a written notice of redemption must be served on the officer who
made the sale and a duplicate filed with the applicable Register of Deeds (Rosales v. Yboa, 120
SCRA 869; Section 28[par. 3], Rule 39, Rules of Court).
The redemption price shall be: the purchase price with one percent (1%) per month
interest; assessment or taxes paid with 1% per month interest (Section 28, Rule 39).
When the mortgagee is a bank or a banking or credit institution, the redemption price is
that which is stipulated in the mortgage document or the outstanding obligation of the mortgage
plus interest and expenses (Unionbank v. CA, GR No. 134068, 25 June 2001; Ponce de Leon v.
RFC, 36 SCRA 289; Sy v. CA, 172 SCRA 125).
The redemption amount includes the assessment of taxes paid by the purchaser and the
interest on the auction price that should be computed from the date of the registration of the
certificate of sale (Sps. Estanislao, Jr. v. CA, GR No. 143687, 31 July 2001).
If no redemption is made within the prescribed period, the buyer at foreclosure sale
becomes the absolute owner of the property purchased (Joven v. CA, 212 SCRA 700; PNB v.
Adil, 118 SCRA 110).
The purchaser then has the absolute right to a writ of possession that is the final process
to carry out or consummate the extrajudicial foreclosure. Henceforth, the mortgagor/debtor
loses his right over the property (Bernardez v. Reyes, 201 SCRA 648; Section 6, Act 3135, as
amended).
Consolidation of title likewise becomes a matter of right on the part of the auction buyer,
and the issuance of a certificate of title in favor of the purchaser becomes ministerial upon the
Register of Deeds (Unionbank v. CA, GR No. 133366, 05 August 1999).
The right to redeem (a foreclosed property) becomes functus oficio on the date of its expiry, and
its exercise after the period is not really one of redemption but of repurchase. Distinction must
be made because redemption is by force of law; the purchaser at public auction is bound to
accept redemption. Repurchase however of a foreclosed property, after redemption period,
imposes no such obligation. After expiry, the purchaser may or may not resell the property but
no law will compel him to do so. And, he is not bound by the bid price; it is entirely within his
discretion to set a higher price, for after all, the property already belongs to him as
owner (Prudencio v. CA, 431 SCRA 566).
Judicial foreclosure of real estate mortgage is governed by the provisions of Rule 68 of the
Rules of Court. It is like any ordinary civil action filed in court that shall be proven by
preponderance of evidence.
Procedure
1. Preparation and filing of complaint which shall set forth the following allegations (Sec. 1, Rule
68):
a) Date and due execution of the mortgage and its assignments, if any;
b) Names and residences of the mortgagor and mortgagee;
c) Description of the mortgaged property/ies;
d) Documentary evidence/s of the obligation/s secured by the mortgage and the unpaid
obligation;
e) Names and residences of all persons having or claiming an interest in the mortgaged
property/ies.
1. The trial court shall render a judgment based on the facts proven and shall ascertain the
amount due based on the mortgage debt or obligation, including interests, charges and costs.
The court shall then direct the defendant to pay said amount within a period of not less than
ninety (90) days nor more than one-hundred twenty (120) days (Sec. 2, Rule 68).
1. In the event of failure to pay as directed within 90 to 120 days, the mortgage realty/ies shall
be sold at an auction sale, the proceeds of which shall be applied to the mortgage debt,
pursuant to Rule 39 of the Rules of Court (Sec. 3, Rule 68).
3.1. Before the sale of the real property/ies, notice must be given:
a) By posting for 20-days in three (3) public places. If the assessed value is more than
P50,000.00, by publishing a copy of the notice once a week for two (2) consecutive
weeks in one newspaper selected by raffle (Sec. 15c, Rule 39).
b) Written notice to the judgment obligor at least three (3) days
before the sale (Sec. 15d, Rule 39).
3.2. The highest bidder shall be issued a certificate of sale (Sec. 25, Rule 39).
1. Upon motion and after notice and hearing, the trial court will issue an order of confirmation
of the sale (Rural Bank of Oroquieta v. CA, 101 SCRA 5 [1980]).
4.1. The final order of confirmation shall be registered with the Registry of Deeds (Sec. 7,
Rule 68).
a) If no right of redemption exists, the certificate of title in the name of the mortgagor
shall be cancelled and a new one issued in the name of the purchaser.
b) Where a right of redemption exists, the certificate of title of the mortgagor shall not
be cancelled. Instead, the certificate of sale and order of confirmation shall be
registered with a memorandum of the right redemption. If the property is not
redeemed a final deed of sale shall be executed by the sheriff in favor of the purchaser
which shall be registered in the Register of Deeds, whereupon the title of the
mortgagor shall be cancelled and a new one issued in the name of the purchaser.
1. If the proceeds of the auction sale of the property are not sufficient, the trial court, upon
motion, shall render a deficiency judgment against the defendant (Sec. 6, Rule 68).
Equity of Redemption
Equity of redemption is the right of the mortgagor to redeem the mortgaged property after
his default in the performance of the conditions of the mortgage but before the sale of the
property or the confirmation of the sale after judicial foreclosure thereof (International Services,
This is the right of the defendant mortgagor to extinguish the mortgage and retain
ownership of the property by paying the secured debt within a 90-day period after the judgment
becomes final or after the foreclosure sale but prior to its confirmation (GSIS v. CFI, 175 SCRA
19 [1989]).
of mortgage by banks or banking institutions (GSIS v. CFI, 175 SCRA 19 [1989]; Huerta Alba
The Supreme Court already ruled on the distinction between the equity of redemption and
“The equity of redemption is, to be sure, different from and should not be confused with
the right of redemption.
Where a mortgage is foreclosed extrajudicially, Act 3135 grants to the mortgagor the right
of redemption within one (1) year from the registration of the sheriff’s certificate of foreclosure
sale. Where the foreclosure is judicially effected, however, no equivalent right of redemption
exists. The law declares that a judicial foreclosure sale, ‘when confirmed by an order of the
court, x x shall operate to divest the rights of all the parties to the action and to vest their rights
in the purchaser, subject to such rights of redemption a may be allowed by law.’ Such rights
exceptionally “allowed by law’ (i.e. even after confirmation by an order of the court) are those
granted by the charter of the Philippine National Bank (Acts No. 2747 and 2938), and the
General Banking Act (R.A. 337).
These laws confer on the mortgagor, his successors in interest or any judgment creditor of
the mortgagor, the right to redeem the property sold on foreclosure – after confirmation by the
court of the foreclosure sale – which may be exercised within a period of one (1) year, counted
from the date of registration of the certificate of sale in the Registry Property.
Deficiency judgment
It refers to judgment for any unpaid balance of the obligation, which remains after
foreclosure of mortgage, judicial or extrajudicial, which a creditor may secure from the court
(Phil. Bank of Commerce v. de Vera, 6 SCRA 1026 [1962]). In extrajudicial foreclosure of
mortgage, where the proceeds of the sale are insufficient to pay the debt, the mortgagee has
the right to recover the deficiency from the debtor (Prudential Bank v. Martinez, 189 SCRA 612
[1990]. In a foreclosure, the deficiency is determined by simple arithmetical computation
immediately after foreclosure (United Planters Sugar Milling Co., Inc. (UPSUMCO) v. CA, 527
SCRA 336 [2007]).
Chattel mortgage is a security for the performance of obligation effected by the recording
of the personal property mortgaged in the chattel mortgage register (Art. 2140, Civil Code;
Northern Motors, Inc. v. Coquia, 66 SCRA 415 [1975]). Only personal property may be the
object of a chattel mortgage (Sec. 2, Act No. 1508). While the subject of a chattel mortgage is
personal property, the parties thereto may by agreement treat as personal property that which
by nature would be real property, such as a building, as the subject of a chattel mortgage, and
the owner thereof may be estopped from subsequently claiming otherwise (Tumalad v. Vicencio,
41 SCRA 143 [1971]). Such agreement, however, is valid only as between the contracting
Section 5 of Act No. 1508 requires the following form of an affidavit of good faith to be
The absence of such affidavit vitiates a mortgage as against creditors and subsequent
encumbrances (Phil. Refining Co. v. Jarque, 61 Phil 229; Giberson v. Jureideni Bros., 44 Phil
216; Benedicto de Tarrosa v. Yap Tico & Co., 46 Phil 753) but may, however, be valid as
between the parties (Lilius & Lilius v. Manila Railroad Co., 62 Phil 56).
It appears that a chattel mortgage may only be foreclosed extrajudicially pursuant to
Section 14 of Act No. 1508 with the deletion of Section 8, Rule 68 of the former rule on judicial
In Section 14 of Act No. 1508, it is a condition precedent before foreclosure that the
conditions of the chattel mortgage be broken and at least 30-days already elapsed.
Procedure
Section 14 of Act No. 1508, provides the following procedure in the extrajudicial
civil action may be instituted for recovery of said deficiency, the chattel mortgage being given
only as security and not as payment for debt in case of failure of payment (Bicol Savings & Loan
Assn. v. Guinhawa, 188 SCRA 642 [1990]; Superlines v. ICC, GR No. 150673, 28 Feb. 2003).
Note however, that in a contract of sale of personal property where the price is payable in
installments and in the event of foreclosure of the chattel mortgage should the vendee fail to
pay two or more installments, the vendor shall have no further action against the purchaser to
recover any unpaid balance of the price. Any agreement to the contrary shall be void (Art. 1484,
Civil Code; Recto Law). Please note that this is applicable in cases of sale of personal property
on installment.