Remaining Topics

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CREDIT TRANSACTIONS FINALS

Mortgage To Preference of Credits
CHAPTER 3: REAL ESTATE MORTGAGE

It is a contract in w/c 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.
Subject Matter:
IMMOVABLES
TANGIBLES
ALIENABLE REAL RIGHTS
INTANGIBLES
FUTURE PROPERTIES
a piece of land w/c I intend to purchase 2 weeks from now
a piece of land w/c is the subject of a contract to sell
Q: What if there is a provision that the mortgage includes such properties which may be acquired
in the future?
A: It is INVALID insofar as the properties, to be acquired in the future, are concerned.
Effect of invalidity: If the debtor defaults in the performance of the obligation or commits a
breach in the condition of the mortgage (non-payment), the mortgagee cannot sell or foreclose all
the properties subsequent to the mortgage being future properties.
Perfection:
NO DELIVERY or TRANSFER OF POSSESSION required

Whereas, pledge is perfected by delivery of the pledged property, being a real
contract.
Accessory Contract:
When the principal obligation is void, the mortgage is also void.
The three essential elements of a contract must be present.
CONSENT by BOTH MORTGAGOR
MORTGAGEE CREDITOR
CONSIDERATION: The causa or consideration which supports the principal
obligation is the same as that which supports the accessory contract of
mortgage.
Just like pledge:
1.) The mortgage is constituted to secure fulfillment of the principal obligation.
2.) The mortgagor must be the absolute owner of the mortgaged property.
3.) The mortgagor must have free disposal of the thing & he is legally authorized to constitute the
mortgage.
Parties:
CREDITOR.
MORTGAGOR owner of the property or the person who constituted the mortgage.
MORTGAGEE to whose favor the mortgage was constituted; otherwise known as
IMPORTANT PRINCIPLES:
Q: If the mortgagee is the creditor, is the mortgagor always the debtor?
A: Not necessarily. A 3rd person may validly constitute a mortgage. Mortgagor is not always the
debtor.
Q: If a person, who is not the absolute owner, mortgages a property and duly records it in the
Registry of Property, is there a valid mortgage constituted?
A: No. REGISTRATION does not confer validity to an invalid mortgage.
Formal Contract: It must be in writing and recorded in the Registry of Property.
To bind both parties, it must be embodied in a public document.
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To bind third persons, it must be embodied in a public document + recorded in the

Registry.
Hechanova vs. Adil
Facts: A private document, not registered, was constituted as a mortgage. Thereafter, the property was
sold to the Hechanova spouses under a Deed of Sale. The purported mortgagee objected to the sale,
saying that the seller, Jose Servando, could not possibly sell because the property was mortgaged to him.
SC: The mortgage is not binding against 3rd persons (the vendee Hechanova spouses), as it was embodied
in a private document and unregistered. It is clear from the records of this case that the plaintiff,
Servando, has no cause of action. Plaintiff has no standing to question the validity of the deed of sale
executed by the deceased defendant Jose Servando in favor of his co-defendants Hechanova and Masa. No
valid mortgage has been constituted plaintiff's favor, the alleged deed of mortgage being a mere
private document and not registered; moreover, it contains a stipulation (pacto comisorio) which is
null and void under Article 2088 of the Civil Code. Even assuming that the property was validly mortgaged
to the plaintiff, his recourse was to foreclose the mortgage, not to seek annulment of the sale.
Hechanova case involved 3rd parties. On the other hand, in the case of Mobil Oil Phils. vs.
Diocares, no 3rd party is involved.
Mobil Oil Phils. vs. Diocares

Facts: Diocares spouses constituted a loan with Mobil Oil Phils. and in order to secure payment of the loan,
they mortgage their property. On top of that, they promised to buy on cash basis their petroleum
requirements in an amount not less than 50,000 L per month. Upon failure to pay, Mobil instituted the
foreclosure proceedings. The Diocares spouses objected to the foreclosure saying that the mortgage was
not registered.
SC: The lower court predicated its inability to order the foreclosure in view of the categorical nature of the
opening sentence of the governing article 10 that it is indispensable, "in order that a mortgage may be
validly constituted, that the document in which it appears be recorded in the Registry of Property." Note
that it ignored the succeeding sentence: "If the instrument is not recorded, the mortgage is
nevertheless binding between the parties." Its conclusion, however, is that what was thus created
was merely "a personal obligation but did not establish a real estate mortgage."
Such a conclusion does not commend itself for approval. The codal provision is clear and explicit. Even if
the instrument were not recorded, "the mortgage is nevertheless binding between the parties."
The law cannot be any clearer. Effect must be given to it as written. The mortgage subsists; the parties are
bound. As between them, the mere fact that there is as yet no compliance with the requirement that it be
recorded cannot be a bar to foreclosure.
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The court allowed the foreclosure of the mortgage because no other parties were prejudiced. This is a case
involving the mortgagor & the mortgagee only.
CUYCO vs. CUYCO: A provision in a private document, although denominating the agreement as one
of mortgage, cannot be considered as such as it is not susceptible of inscription in the property registry.
A mortgage in legal form is not constituted by a private document, even if such mortgage be
accompanied with delivery of possession of the mortgage property.
-
Under Act 496, there is a required form in order for a mortgage to be valid. It must be
ACKNOWLEDGED. ACKNOWLEDGEMENT JURAT
Acknowledgment: [Before me, a notary public, personally appear Mr. X who presented his CTC
Community Tax Certificate # 1234. Known to me and to me, known as the same person who
executed the document as a free and voluntary act and deed.]
Jurat: [Subscribed to & sworn by me]
Implication of CUYCO Case: A mortgage, to be valid between parties, must be in a PUBLIC

INSTRUMENT.
Q: A is indebted to B in the amount of Php 100,000. The obligation is secured by a mortgage where A signs
a public document, acknowledged before a notary public, in favor of B. It was duly recorded in the Register
of Deeds. Thereafter, the property is sold to C. The title is transferred to C who is now the owner.
Afterwards, A defaulted in the obligation. Can B foreclose the mortgage?
A: Yes, because the mortgage is binding as it was registered. Not only was the mortgage recorded in the
(1) Day Book, it was also (2) annotated in the dorsal portion of the title so that 3rd persons will
know that it is burdened. 3rd persons can no longer invoke the defense of being a purchaser in good faith.
Note: The subsequent sale to C is valid. If the mortgaged property is transferred to C, the mortgage will
still be reflected to the new title issued to C. Mortgage follows the property, regardless of the owner!
(Creation of a REAL RIGHT!)
Effect of Acknowledgment & Registration
Valid Between Parties
Public Document
Public Document
Private Document
Private Document
+
+
+
+
Registered
Unregistered
Registered
Unregistered
Enforceable Against 3rd

Persons
Library of Laws
Art. 2124. Only the following property may be the object of a contract of mortgage:
(1) Immovables;
(2) Alienable real rights in accordance with the laws, imposed upon immovables.
Nevertheless, movables may be the object of a chattel mortgage.
Art. 2125. In addition to the requisites stated in Article 2085, it is indispensable, in order that a mortgage
may be validly constituted, that the document in which it appears be recorded in the Registry of Property. If
the instrument is not recorded, the mortgage is nevertheless binding between the parties.
The persons in whose favor the law establishes a mortgage have no other right than to demand the
execution and the recording of the document in which the mortgage is formalized.
Art. 2126. The mortgage directly and immediately subjects the property upon which it is imposed,
whoever the possessor may be, to the fulfillment of the obligation for whose security it was constituted.
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Art. 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.
Art. 2128. The mortgage credit may be alienated or assigned to a third person, in whole or in part, with
the formalities required by law.
Art. 2129. The creditor may claim from a third person in possession of the mortgaged property, the
payment of the part of the credit secured by the property which said third person possesses, in the terms
and with the formalities which the law establishes.
Art. 2130. A stipulation forbidding the owner from alienating the immovable mortgaged shall be void.
Art. 2131. The form, extent and consequences of a mortgage, both as to its constitution, modification and
extinguishment, and as to other matters not included in this Chapter, shall be governed by the provisions
of the Mortgage Law and of the Land Registration Law.
Kinds of Mortgages:
1.) Voluntary or Conventional Mortgage created by the parties; w/ meeting of minds
2.) Legal Mortgage one required by law to guarantee performance
3.) Equitable Mortgage one which reveals an intent to make the property a security, even if the
contract lacks the proper formalities of a real estate mortgage.
The intention of the properties is to subject the property for the fulfillment of an
obligation but the document executed is either a:
(a) PACTO DE RETRO SALE or Sale with Right to Repurchase (subject to conventional
redemption)
(b) ABSOLUTE SALE
Art. 1602. The contract shall be presumed to be an equitable mortgage, in any of the following cases:
(1) When the price of a sale with right to repurchase is unusually inadequate;
(2) When the vendor remains in possession as lessee or otherwise;
(3) When upon or after the expiration of the right to repurchase another instrument extending the period of
redemption or granting a new period is executed;
(4) When the purchaser retains for himself a part of the purchase price;
(5) When the vendor binds himself to pay the taxes on the thing sold;
(6) In any other case where it may be fairly inferred that the real intention of the parties is that the transaction
shall secure the payment of a debt or the performance of any other obligation.
In any of the foregoing cases, any money, fruits, or other benefit to be received by the vendee as rent or otherwise shall be
considered as interest which shall be subject to the usury laws.
When these circumstances are present, the presumption is that what is entered into is an EQUITABLE
MORTGAGE.
- It is the seller who is interested in treating the contract as a mortgage rather than a sale.
- It is the buyer who is interested in treating the contract as a sale rather than a mortgage.
REMEDY OF THE SELLER: REFORMATION of INSTRUMENT, not of the contract!!!
-
You cannot reform the contract because the contract is a Mortgage.

The true agreement is not reflected in the contract. The real intention is to subject the property as a
security to secure fulfillment of the principal obligation.
EFFECTS OF MORTGAGE:
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The mortgage directly & immediately subjects the property to the fulfillment of the obligation
secured.
-
A REAL RIGHT is created by virtue of the mortgage.

Even if the property mortgaged is subsequently sold after the constitution of the mortgage, the
right created over the property remains in a way that any sale or transfer cannot affect or
release the mortgage.
The right of the mortgagee to foreclose attaches to the property, whoever is the owner of the
property.
Is the court empowered to order the cancellation of mortgage in lieu of surety bond?
Ganzon vs. Insierto
The issue raised before us is whether or not the trial court may order the cancellation of a mortgage
lien annotated in a Torrens Certificate of Title to secure the payment of a promissory note and substitute
such mortgage lien with a surety bond approved by the same court to secure the payment of the
promissory note.
SC: Applying the principles underlying the nature of a mortgage, the real estate mortgage constituted
on Lot No. 1901-E-61-B-lF of the subdivision plan located in the District of Molo, Iloilo City covered by TCT
No. T-50324 can not be substituted by a surety bond as ordered by the trial court. The mortgage lien
in favor of Petitioner Rodolfo Ganzon is inseparable from the mortgaged property. It is a right in rem, a lien
on the property. To substitute the mortgage with a surety bond would convert such lien from a right in
rem, to a right in personam. This conversion can not be ordered for it would abridge the rights of the
mortgagee under the mortgage contract.
Moreover, the questioned orders violate the non-impairment of contracts clause guaranteed under the
Constitution. Substitution of the mortgage with a surety bond to secure the payment of the P40,000.00
note would in effect change the terms and conditions of the mortgage contract.
What is the effect of the death of the mortgagor?
Vda. De Jacob vs. CA
According to Sec. 7, Rule 86 of the Rules of Court, it is clearly recognized that a mortgagee has three
remedies that may be alternately availed of in case the mortgagor dies, to wit:
(1) to waive the mortgage and claim the entire debt from the estate of the mortgagor as an ordinary claim;
(2) to foreclose the mortgage judicially and prove the deficiency as an ordinary claim; and;
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(3) to rely on the mortgage exclusively, or other security and foreclose the same at anytime, before it is
barred by prescription, without the right to file a claim for any deficiency.
From the foregoing, it is clear that the mortgagee does not lose its right to extra-judicially
foreclose the mortgage even after the death of the mortgagor as a third alternative under Section
7, Rule 86 of the Rules of Court. The power to foreclose a mortgage is not an ordinary agency that
contemplated exclusively the representation of the principal by the agent but is primarily an authority
conferred upon the mortgagee for the latter's own protection. That power survives the death of the
mortgagor.
3 ALTERNATIVE REMEDIES if the Mortgagor Dies:
1.) WAIVE & abandon the mortgage & CLAIM the entire debt from the estate as an ordinary claim.
2.) FORECLOSE the mortgage judicially & PROVE the deficiency as an ordinary claim.
3.) RELY EXCLUSIVELY on the mortgage & foreclose @ any time before barred by prescription without
the right to file a claim for deficiency
Mortgagee cannot be forced to file his claim in the estate as the Rules expressly grants him 3
alternatives.
Mortgagee is a preferred creditor with regard to the mortgaged property.
There may also be first or second mortgages. The subsequent mortgages become junior
mortgage liens.
A subject of a mortgage may be an undivided portion (pro indiviso share) if there is no partition
effected in a co-owned property.
Mortgage extends to accessions & accessories or improvements of the real property.
Spouses Paderes vs. CA
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Facts: At the time of the constitution of the mortgage, the land is bare. After the mortgage, the mortgagor
constructed a house and sells the house & lot to another person under a contract to sell. Then the
mortgagor defaults in the payment of the obligation. Can both the house and the lot be subject to
foreclosure sale? Spouses Paderes objected to the inclusion of the house in the foreclosure as it was
constructed after the constitution of the mortgage.
SC: Citing Art. 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.
If the property mortgaged has growing fruits not yet harvested @ the time of maturity, the
fruits are deemed included in the mortgage. They may be foreclosed.
Industrial fruits like uncollected rent may also be foreclosed. The mortgagee cannot demand
collected rent.
Whatever may be found in the property like a steam sugar mill fitted with a portable 8 HP
boiler with all its attachments and a complete tramway with rails & other fittings and 15
small cars located in Hacienda San Jose, are deemed included in the mortgage UNLESS there is
an expression stipulation between the parties excluding them. [Bischoff vs. Pomar]
OTHER SCENARIOS:
A. What if another party, not the mortgagor, introduces the improvements?
The provisions on Builder-in-Good-Faith will apply.
However, it can be argued that a builder cannot invoke good faith or lack of knowledge
of the mortgage as registration of mortgage is constructive notice to the whole
world.
In effect, he must BUILD ON HIS OWN RISK!
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B. Can there be a stipulation absolutely prohibiting the mortgagor from selling the
property?
No, it is a void stipulation being contrary to public policy.
Mortgagor remains to be the owner. He is not divested of his ownership by merely

constituting the mortgage.
PACTUM DE NON ALIENANDO stipulation prohibiting the alienation of the property is

void.
C. Can the mortgagee ASSIGN OR TRANSFER his credit or his right under the mortgage?
Customary Business Scenario: Primary Structures (a real estate company) sells condominium
units on installments and the buyer executes a real estate mortgage over the condominium unit to
secure payment of the purchase price. Granting that there is already transfer of ownership, as in a
conditional contract of sale, if the seller needs money now, the seller may assign the credit (right to
collect) to a financing company like Radiowealth Finance Co. What is transferred to the financing
company is not merely the right to collect from the condominium buyer but also the accessory
contract of real estate mortgage. Radiowealth may then foreclose the condominium upon default of
the buyer.
NO NEED TO SECURE THE CONSENT of the MORTGAGOR for the mortgagee to validly assign
his right.
D. Can the parties stipulate that the mortgagee may take possession of the property?
This is the scenario of a prenda where the mortgagee may possess a coconut
plantation for instance. The mortgagor now assumes the obligations of an antichretic
creditor.
The fruits may be applied to the payment of interest. (antichresis)
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E. Rights of the 2nd Mortgagee
2nd mortgagor cannot foreclose even if his maturity date is EARLIER than the 1st
mortgage.
His right is SUBORDINATE to the 1st mortgagee.
Remedy: In order to foreclose the mortgage, he has to redeem the property.

He needs to pay the mortgagors obligation to the 1st mortgagee.
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MODES OF FORECLOSURE
A. JUDICIAL FORECLOSURE under Rule 68 of the Rules of Court

[to be discussed in 3rd Year Subject on Special Civil Actions]
RULE 68
FORECLOSURE OF REAL ESTATE MORTGAGE
Section 1. Complaint in action for foreclosure.
In an action for the foreclosure of a mortgage or other encumbrance upon real estate, the complaint shall set forth the
date and due execution of the mortgage; its assignments, if any; the names and 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 unpaid thereon; and the names and
residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the
mortgage, all of whom shall be made defendants in the action.
Sec. 2. Judgment on foreclosure for payment or sale. Period for EQUITY OF REDEMPTION
If upon the trial in such action the court shall find the facts set forth in the complaint to be true, it shall ascertain the
amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as
approved by the court, and costs, and shall render judgment for the sum so found due and order that the same be paid
to the court or to the judgment obligee within a period of not less than ninety (90) days nor more than one
hundred twenty (120) days from the entry of judgment, and that in default of such payment the property shall
be sold at public auction to satisfy the judgment.
Sec. 3. Sale of mortgaged property; effect. WRIT OF POSSESSION
When the defendant, after being directed to do so as provided in the next preceding section, fails to pay the amount of
the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the
manner and under the provisions of Rule 39 and other regulations governing sales of real estate under
execution. Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part
thereof, and when confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the
property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption
as may be allowed by law.
Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law,
the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property
unless a third party is actually holding the same adversely to the judgment obligor. The said purchaser or
last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure.
Sec. 4. Disposition of proceeds of sale.
The amount realized from the foreclosure sale of the mortgaged property shall, after deducting the costs of the sale,
be paid to the person foreclosing the mortgage, and when there shall be any balance or residue, after paying off the
mortgage debt due, the same shall be paid to junior encumbrancers in the order of their priority, to be ascertained
by the court, or if there be no such encumbrancers or there be a balance or residue after payment to them, then to the
mortgagor or his duly authorized agent, or to the person entitled to it.
Sec. 5. How sale to proceed in case the debt is not all due.
If the debt for which the mortgage or encumbrance was held is not all due as provided in the judgment, as soon as a
sufficient portion of the property has been sold to pay the total amount and the costs due, the sale shall terminate;
and afterwards, as often as more becomes due for principal or interest and other valid charges, the court may, on
motion, order more to be sold. But if the property cannot be sold in portions without prejudice to the parties, the whole
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shall be ordered to be sold in the first instance, and the entire debt and costs shall be paid, if the proceeds of the sale
be sufficient therefor, there being a rebate of interest where such rebate is proper.
Sec. 6. Deficiency judgment.
See the case of DBP vs. Licuanan: Recovery of Deficiency Claim Provided that the Foreclosure is Valid
If upon the sale of any real property as provided in the next preceding section there be a balance due to the plaintiff
after applying the proceeds of the sale, the court, upon motion, shall render judgment against the defendant for any
such balance for which, by the record of the case, he may be personally liable to the plaintiff, upon which
execution may issue immediately if the balance is all due at the time of the rendition of the judgment; otherwise, the
plaintiff shall be entitled to execution at such time as the balance remaining becomes due under the terms of the
original contract, which time shall be stated in the judgment.
Sec. 7. Registration. Confirmatory Certificate or Deed of Absolute Sale
A certified copy of the final order of the court confirming the sale shall be registered in the registry of deeds. 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.
Where a right of redemption exists, the certificate of title in the name of the mortgagor shall not be cancelled, but the
certificate of sale and the order confirming the sale shall be registered and a brief memorandum thereof made by the
registrar of deeds upon the certificate of title. In the event the property is redeemed, the deed of redemption shall be
registered with the registry of deeds, and a brief memorandum thereof shall be made by the registrar of deeds on said
certificate of title.
If the property is not redeemed, the final deed of sale executed by the sheriff in favor of the purchaser at the
foreclosure sale shall be registered with the registry of deeds; whereupon the certificate of title in the name of the
mortgagor shall be cancelled and a new one issued in the name of the purchaser.
Sec. 8. Applicability of other provisions.
The provisions of sections 31, 32 and 34 of Rule 39 shall be applicable to the judicial foreclosure of real estate
mortgages under this Rule insofar as the former are not inconsistent with or may serve to supplement the provisions of
the latter.
B. EXTRAJUDICIAL FORECLOSURE under Act 3135 & A.M. No. 99-10-05-0 August 7, 2001
ACT NO. 3135 - AN ACT TO REGULATE THE SALE OF PROPERTY UNDER SPECIAL POWERS INSERTED IN OR
ANNEXED TO REAL-ESTATE MORTGAGES
Sec. 1. When a sale is made under a special power inserted in or attached to any real-estate mortgage hereafter made as
security for the payment of money or the fulfillment of any other obligation, the provisions of the following election shall
govern as to the manner in which the sale and redemption shall be effected, whether or not provision for the same is made
in the power.
Sec. 2. Said sale cannot be made legally outside of the province in which the property sold is situated; and in case
the place within said province in which the sale is to be made is subject to stipulation, such sale shall be made in said place
or in the municipal building of the municipality in which the property or part thereof is situated.
Sec. 3. Notice shall be given by posting notices of the sale for not less than twenty days in at least three public
places of the municipality or city where the property is situated, and if such property is worth more than four hundred
pesos, such notice shall also be published once a week for at least three consecutive weeks in a newspaper of general
circulation in the municipality or city.
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Sec. 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 of the
municipality in which such sale has to be made, or a notary public of said municipality, who shall be entitled to collect a
fee of five pesos each day of actual work performed, in addition to his expenses.
Sec. 5. At any sale, the creditor, trustee, or other persons authorized to act for the creditor, may participate in the bidding
and purchase under the same conditions as any other bidder, unless the contrary has been expressly provided in the
mortgage or trust deed under which the sale is made.
Sec. 6. In all cases in which an extrajudicial sale is made under the special power hereinbefore referred to, 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 one year from and after the date of the sale; and such redemption shall be governed by the
provisions of sections four hundred and sixty-four to four hundred and sixty-six, inclusive, of the Code of Civil Procedure, in
so far as these are not inconsistent with the provisions of this Act.
Sec. 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of First Instance of the
province or place where the property or any part thereof is situated, to give him possession thereof during the redemption
period, furnishing bond in an amount equivalent to the use of the property for a period of twelve 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 this Act. Such petition shall be made under oath and filed in form of an ex parte motion in the registration or
cadastral proceedings if the property is registered, or in special proceedings in the case of property registered under the
Mortgage Law or under section one hundred and ninety-four of the Administrative Code, or of any other real property
encumbered with a mortgage duly registered in the office of any register of deeds in accordance with any existing law, and
in each case the clerk of the court shall, upon the filing of such petition, collect the fees specified in paragraph eleven of
section one hundred and fourteen of Act Numbered Four hundred and ninety-six, as amended by Act Numbered Twenty-eight
hundred and sixty-six, and the court shall, upon approval of the bond, order that a writ of possession issue, addressed to
the sheriff of the province in which the property is situated, who shall execute said order immediately.
Sec. 8. The debtor may, in the proceedings in which possession was requested, but not later than thirty days after the
purchaser was given possession, petition that the sale be set aside and the writ of possession cancelled,
specifying the damages suffered by him, because the (1) mortgage was not violated or the (2) sale was not made in
accordance with the provisions hereof, and the court shall take cognizance of this petition in accordance with the summary
procedure provided for in section one hundred and twelve of Act Numbered Four hundred and ninety-six; and if it finds the
complaint of the debtor justified, it shall dispose in his favor of all or part of the bond furnished by the person who obtained
possession. Either of the parties may appeal from the order of the judge in accordance with section fourteen of Act
Numbered Four hundred and ninety-six; but the order of possession shall continue in effect during the pendency of
the appeal.
Sec. 9. When the property is redeemed after the purchaser has been given possession, the redeemer shall be 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 purchaser occupied the property 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 one per centum per month
provided for in section four hundred and sixty-five of the Code of Civil Procedure.
Sec. 10. This Act shall take effect on its approval. Approved: March 6, 1924
A.M. No. 99-10-05-0
August 7, 2001
PROCEDURE IN EXTRA-JUDICIAL FORECLOSURE OF MORTGAGE
In line with the responsibility of an Executive Judge under Administrative Order No. 6, dated June 30, 1975, for the
management of courts within his administrative area, included in which is the task of supervising directly the work of
the Clerk of Court, who is also the Ex-Officio Sheriff, and his staff, and the issuance of commissions to notaries
public and enforcement of their duties under the law, the following procedures are hereby prescribed in extrajudicial
foreclosure of mortgages:
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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 by Act 4118, and Act 1508, 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. 00-2-01SC, 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 for in the aforementioned sections and in Rule 141, Section 9(1), as amended by
A.M. No. 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 Deeds concerned, after which, the records shall be
archived. Notwithstanding the foregoing provision, juridical persons whose property is sold pursuant
to an extra-judicial 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 the notary public who conducted the sale to
the Clerk of Court before the issuance of the certificate of sale.
14
IMPORTANT POINTS ON EJ FORECLOSURE
WHEN INSTITUTED:
EJ Foreclosure may be instituted or initiated if the right to foreclose is granted to the mortgagee in the (a)
contract of real estate mortgage or in a (b) separate instrument.
Otherwise, the proper recourse is made on JUDICIAL FORECLOSURE.
In a judicial foreclosure, you need to file a petition in court (litigated action)
EJ Foreclosure applied before the EXECUTIVE JUDGE through the Clerk of Court (Ex-Officio Sheriff)
It is not a litigated action, in that, there will be no trial conducted.
Conditions of the Foreclosure of Mortgage:
There is a violation or breach on the mortgage contract such as default in the payment of
principal.
PROCEDURAL STEPS IN EJ FORECLOSURE

STEP 1:
Pay the filing fee.
STEP 2:
Post notices in 3 public places @ least 20 days before the sale of the property
1.)
Sheriffs Office @ the Office of the Clerk of Court of the RTC
2.)
City Assessors Office in the place where the property is located
3.)
Office of the Register of Deeds in the place where the property is located
15
Act No. 3135: If the property is valued more than Php 400, there must be publication in a newspaper of
general circulation once every 3 consecutive weeks.
What is stated in the notice:
correct description of the property
correct TCT No.

correct Tax Declaration
Mortgagor NEED NOT BE NOTIFIED, unless provided in the mortgage contract.
STEP 3:
Public sale conducted in
(a)
(b)
located
Who conducts the sale:
(a)
GEN: the province where property is located

SPECIFIC: the municipal hall where the property is
Sheriff
(b)
Notary Public
(c)
Justice of Peace or Auxiliary Justice of Peace (MTC Judge)
You still need to pay the commissions of the sheriff even if sale is conducted by notary public.
MTC judge is not precluded from conducting foreclosure sale as the law Act 3135 prevails over AM 99-10-05-0.
There is NO REQUIREMENT to schedule another foreclosure sale if there is only 1 BIDDER.
When: Under Act No. 3135, it must be conducted between the hours of 9:00 AM to 4:00 PM
STEP 4:
A Certificate of Sale is now issued by the CLERK OF COURT, w/ the approval of the Executive Judge.
Regardless of whether or not the sheriff or the notary public will conduct the sale.
16
STEP 5:
Period of Redemption: 1 year from registration of the Certificate of Sale

Assumption: The mortgagee is not a banking institution & the mortgagor is a natural person.
Posting
20 days Sale
Absolute Sale
Petition to Cancel Sale
Registration
of CoS
Writ of
Possession
Actual
30 Days
1 Yr.
Confirmatory Deed of
Possession
Right of Redemption
Assumption: The mortgagee is not a banking institution & the mortgagor is a natural person.
ACTIONS DURING THE INTERREGNUM

Petition for Issuance of Writ of Possession
Petition to Cancel Sale
Appeal
A. Writ of Possession
-
not a litigated petition in EJ Foreclosure & is issued as a matter of course in RTC

must be accompanied with a BOND equivalent to the value of the property for a period of 12 mos.
applied for by the PURCHASER if the property is in the possession of the mortgagor debtor
NOT WHEN in the possession of a 3rd party having an adverse claim over the property
o 3rd person is claiming a right inconsistent with the owner or in the concept of an owner
o The proper remedy would be to file QUIETING OF TITLE, ACCION REINVINDICATORIA
B. Petition to Cancel Sale

-
proper title accdg. to Act 3135: petition that the sale be set aside and the writ of possession
cancelled
not the same as Annulment of Judgment, as there is no judgment; what is conducted is EJ

Foreclosure
2 GROUNDS:
publication)
(2)
(1)
there was NO VIOLATION of the mortgage
IMPROPER CONDUCT of the sale (lack of notice, posting,
filed within 30 days from the time purchaser is granted possession of property by virtue of writ of
possession
filed by the mortgagor-debtor to question the sale in the SAME proceedings
purchaser continues in possession of the property even if there is pending period of redemption
17
Act 3135 Sec. 8: Either of the parties may appeal from the order of the judge in accordance with section 14
of Act 496; but the order of possession shall continue in effect during the pendency of the appeal.
C. Appeal
If the court grants the petition to cancel the sale [Order Cancelling the Sale], the purchaser
still
continues possession since he can still appeal the decision.
He is entitled to possession until finality of judgment. (20 years or so)
If on appeal, the decision is affirmed, then the purchaser needs to surrender possession of the
property.
If there is no appeal raised by the purchaser, then he needs to surrender possession of the
property.
If the Certificate of Sale is not registered, then the 1-year redemption period WILL NOT RUN.
The duty to register is incumbent upon the purchaser.
If no redemption is made, then the purchaser is issued a Confirmatory Deed of Sale w/c is to be used by
the
purchaser in registering the property in the Register of Deeds.
NOTE: If there is no writ of possession issued by the court because the purchaser did not ask to be given
possession AND the mortgagor filed a petition to cancel sale, he can file that action in the same
proceeding but not strictly within the 1 year period. He may file it within 4 years from the registration of
CoS.
If the proceeds of the sale is not enough to satisfy the obligation, can the creditor still file an
ordinary civil case for a sum of money for the deficiency?
o Yes, the creditor may file a DEFICIENCY CLAIM EXC. under the RECTO LAW
SIDEBAR: RECTO LAW - Article 1484 of the Civil Code

provides for the remedies of a seller in contracts of
sale of personal property by installments.
RATIONALE: The object of Recto Law was to remedy
the abuses committed in connection with the
foreclosure of chattel mortgages and was meant to
prevent mortgagees from seizing the mortgaged
property, buying it at foreclosure sale for a low price
and then bringing suit against the mortgagor for a
deficiency judgment.
Under Article 1484 of the New Civil Code, in a contract

of sale of personal property the price of which is
payable in installments, the vendor may exercise any
of the following alternative remedies:
1. Exact fulfillment of the obligation, should the
buyer fail to pay any installment
2. Cancel the sale, should the buyer fail to pay cover
two or more installments;
3. Foreclose the chattel mortgage on the thing
sold, if one has been constituted, should the buyer fail
to pay cover two or more installments.
In DBP vs. Licuanan: While it is true that in extrajudicial foreclosure of mortgage, the
mortgagee has the right to recover the deficiency from the debtor, this presupposes
that the foreclosure must first be valid. In this case, since there was no demand
made by DBP, the 3rd essential element of a cause of action (COA) is missing, namely
an act or omission violative of the plaintiffs right. Thus, Licuanan cannot be held
liable for the deficiency given the lack of cause of action of DBP.
o
o
o
RULES ON REDEMPTION
o
o
o
o
o
o
E
o
o
J
o
o
Natural
o
o
Right of
Redemption
1 Year from
Registration of
Sale
o
o
Equity of
Redemption
i.e. 90 120 days
from Finality of
Judgment &
before Sale
o
o
Illustration A: EJ Foreclosure
Foreclosure
Juridical
Until but Not Later

Than Registration;
Not More Than 90
days from
Foreclosure
(whichever is
earlier)
Equity of
Redemption
i.e. 90 120 days
from Finality of
Judgment & before
Sale
Illustration B: Judicial
o
Sale
Registration
1 Yr.
Finality of Judgment
Sale
o
o
Juridical Persons (not > 90 d)

Juridical Persons
Natural &
o
Equity of Redemption
o
Natural Persons
days after finality of judgment
90 120
Right of Redemption
but
before sale
o
[Huerta Alba Resort vs. CA]:

Redemption
Right of Redemption vs. Equity of
o
A. RIGHT OF REDEMPTION
-
Prerogative to reacquire the mortgaged property after registration of the foreclosure sale
Within 1 year from the registration of the certificate of sale
Exists only in EJ Foreclosure of Mortgage & when the mortgagee is PNB or a banking institution
o
B. EQUITY OF REDEMPTION
-
Right of the mortgagor to extinguish the mortgage and retain ownership of the property by paying
the secured debt within 90 day period after judgment becomes final but before the sale or the
order confirming the sale
In accordance with Rule 68 of the Rules of Court on Judicial Foreclosure of Mortgage

o
o
Under the General Banking Law of 2000 Sec. 47 dealing with a banking institution
o
o
Section 47. Foreclosure of Real Estate Mortgage. - In the event of foreclosure, whether
judicially or extra-judicially, of any mortgage on real estate which is security for any loan or other
credit accommodation granted, the mortgagor or debtor whose real property has been sold for the
full or partial payment of his obligation shall have the right within one year after the sale of the
real estate, to redeem the property by paying the amount due under the mortgage deed,
with interest thereon at rate specified in the mortgage, and all the costs and expenses
incurred by the bank or institution from the sale and custody of said property less the income
derived therefrom. However, the purchaser at the auction sale concerned whether in a judicial or
extra-judicial foreclosure shall have the right to enter upon and take possession of such property
immediately after the date of the confirmation of the auction sale and administer the same in
accordance with law. Any petition in court to enjoin or restrain the conduct of foreclosure
proceedings instituted pursuant to this provision shall be given due course only upon the filing by
the petitioner of a bond in an amount fixed by the court conditioned that he will pay all the
damages which the bank may suffer by the enjoining or the restraint of the foreclosure proceeding.
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.
Natural
o
o
o
E
Right of
Redemption from
Sale
o
o
o
J
1 Year from
Foreclosure Sale
For extrajudicial foreclosure, there are basically SIMILAR RULES.
Juridical
Until but Not Later

Than Registration;
Not More Than 90
days from
foreclosure
(whichever is
earlier)
1 Year from
Foreclosure Sale
The difference is with regard judicial foreclosure concerning banking institutions. There is
a RIGHT OF REDEMPTION whether the mortgagor is a natural or juridical persons.
o
What is the effect of tender of less than the purchase price?
o
o
o BPI vs. Spouses Veloso
o
o
o
o
o
o
o
o
o
o
o
o
o
o
Governing Rules: The general rule in redemption is that it is not sufficient that a
person offering to redeem manifests his desire to do so. The statement of intention must
be accompanied by an actual and simultaneous tender of payment. This constitutes the
exercise of the right to repurchase.
Bona fide redemption necessarily implies a reasonable and valid tender of the
entire repurchase price, otherwise the rule on the redemption period fixed by
law can easily be circumvented.
Facts: Consequently, in this case, the offer by respondents on July 24, 1986 (less than 1
month before the period of redemption expires) to redeem the foreclosed properties for
P1,872,935 and the subsequent consignation in court of P1,500,000 on August 27, 1986,
while made within the period of redemption, was ineffective since the amount
offered and actually consigned not only did not include the interest but was in
fact also way below the P2,782,554.66 paid by the highest bidder/purchaser of
the properties during the auction sale. The consigned amount was even withdrawn and
replaced with a surety bond amounting to P 100,000. Was there a valid offer of
redemption despite the fact that only a partial payment was made?
SC: None. In order to effect a redemption, the judgment debtor must pay the purchaser
the redemption price composed of the following:
(1) the price which the
purchaser paid for the property;
(2) interest of 1% per month on the purchase price;
(3) the amount of any assessments or taxes which the
purchaser may have paid on
the property after the purchase; and
(4) interest of 1% per month on such assessments and taxes.
W/N respondents were diligent in asserting their willingness to pay is irrelevant.
Redemption w/in the period allowed by law is not a matter of intent but a question of
payment or valid tender of the full redemption price w/in said period.
o
o
o
o REDEMPTIONER
Its not only the debtor who is entitled to redeem. Even a JUDGMENT CREDITOR of the
DEBTOR can redeem. A judgment creditor is one who has a lien on the property subsequent to
the judgment under which the property was sold. He is also called a REDEMPTIONER who is
entitled to make an offer to redeem.
In addition to the offer to redeem, you must also tender the full redemption price.
You cannot delay payment by making an offer to redeem and paying the price
o
o
NEXT YEAR
o
IN INSTALLMENTS
o
OFFERING A SURETY BOND
o
o In effect, you are extending the period of redemption which is NOT ALLOWED.
o
o RULE: OFFER TO REDEEM + ACTUAL TENDER OF FULL REDEMPTION PRICE
o
o Full Redemption Price =
Full Purchase Price
+ 1% Interest Per Month on the Full Purchase
o
Price
o
o
+ Taxes & Assessments w/c the Purchaser Paid

+ 1% Interest Per Month on the Taxes &
Assessments
o
+ Necessary Expenses for Preservation
o
If the mortgagee is a banking institution, the amount to be paid must be the AMOUNT DUE
under the MORTGAGE DEED. This means the full obligation of the mortgagor to the bank
o
o REMEDIES OF A MORTGAGOR IN AN EQUITABLE MORTGAGE:
o
1. File an action for the REFORMATION OF THE INSTRUMENT.
2. Raise it as a DEFENSE against the SELLER that it is actually a mortgage and not a sale.
3. When the period of redemption has LAPSED in an Sale A Retro.
o Title will not be absolutely conferred on the vendee a retro. He has to get a court
declaration of absolute ownership for the consolidation of his ownership. The vendor a
retro can then raise an objection in the judicial proceeding in the consolidation of the his
ownership.
o
o CHAPTER 5: CHATTEL MORTGAGE
o
o LIBRARY OF LAWS
o
o Art. 2140. By a chattel mortgage, personal property is recorded in the Chattel Mortgage
Register as a security for the performance of an obligation. If the movable, instead of
being recorded, is delivered to the creditor or a third person, the contract is a pledge and
not a chattel mortgage.
o
o Art. 2141. The provisions of this Code on pledge, insofar as they are not in conflict with
the Chattel Mortgage Law shall be applicable to chattel mortgages.
o
o ACT NO. 1508 - AN ACT PROVIDING FOR THE MORTGAGING OF PERSONAL
PROPERTY AND FOR THE REGISTRATION OF THE MORTGAGES SO EXECUTED
o
o Sec. 1. The short title of this Act shall be "The Chattel Mortgage Law."
Sec. 2. All personal property shall be subject to mortgage, agreeably to the provisions of
this Act, and a mortgage executed in pursuance thereof shall be termed chattel
mortgage.
Sec. 3. Chattel mortgage defined. A chattel mortgage is a conditional sale of
personal property as security for the payment of a debt, or the performance of
some other obligation specified therein, the condition being that the sale shall be void
upon the seller paying to the purchaser a sum of money or doing some other act named.
If the condition is performed according to its terms the mortgage and sale immediately
become void, and the mortgagee is thereby divested of his title.
Sec. 4. Validity. A chattel mortgage shall not be valid against any person except the
mortgagor, his executors or administrators, unless the possession of the property is
delivered to and retained by the mortgagee or unless the mortgage is recorded in the
office of the register of deeds of the province in which the mortgagor resides at the time
of making the same, or, if he resides without the Philippine Islands, in the province in
which the property is situated: Provided, however, That if the property is situated in a
different province from that in which the mortgagor resides, the mortgage shall be
recorded in the office of the register of deeds of both the province in which the
mortgagor resides and that in which the property is situated, and for the purposes of this
Act the city of Manila shall be deemed to be a province.
Sec. 5. Form. A chattel mortgage shall be deemed to be sufficient when made
substantially in accordance with the following form, and shall be signed by the person or
persons executing the same, in the presence of two witnesses, who shall sign the
mortgage as witnesses to the execution thereof, and each mortgagor and mortgagee, or,
in the absence of the mortgagee, his agent or attorney, shall make and subscribe an
affidavit in substance as hereinafter set forth, which affidavit, signed by the parties to
the mortgage as above stated, and the certificate of the oath signed by the authority
administering the same, shall be appended to such mortgage and recorded therewith.
o
o FORM OF CHATTEL MORTGAGE AND AFFIDAVIT
o
o
"This mortgage made this ____ day of ______19____ by _______________, a resident of the
municipality of ______________, Province of ____________, Philippine Islands mortgagor, to
____________, a resident of the municipality of ___________, Province of ______________,
Philippine Islands, mortgagee, witnesseth:
"That the said mortgagor hereby conveys and mortgages to the said mortgagee all of the
following-described personal property situated in the municipality of ______________,
Province of ____________ and now in the possession of said mortgagor, to wit:
(Here insert specific description of the property mortgaged.)
"This mortgage is given as security for the payment to the said ______, mortgagee, of
promissory notes for the sum of ____________ pesos, with (or without, as the case may be)
interest thereon at the rate of ___________ per centum per annum, according to the terms
of __________, certain promissory notes, dated _________, and in the words and figures
following (here insert copy of the note or notes secured).
"(If the mortgage is given for the performance of some other obligation aside from the
payment of promissory notes, describe correctly but concisely the obligation to be
performed.)
"The conditions of this obligation are such that if the mortgagor, his heirs, executors, or
administrators shall well and truly perform the full obligation (or obligations) above
stated according to the terms thereof, then this obligation shall be null and void.
"Executed at the municipality of _________, in the Province of ________, this _____ day of
19_____
____________________
(Signature of mortgagor.)
"In the presence of
"_________________
"_________________
(Two witnesses sign here.)
FORM OF OATH.
"We severally swear that the foregoing mortgage is made for the purpose of securing the
obligation specified in the conditions thereof, and for no other purpose, and that the
same is a just and valid obligation, and one not entered into for the purpose of fraud."
FORM OF CERTIFICATE OF OATH.
"At ___________, in the Province of _________, personally appeared ____________, the parties
who signed the foregoing affidavit and made oath to the truth thereof before me.
"_____________________________"
(Notary public, justice of the peace, 1 or other officer, as the case may be.)
o
Sec. 6. Corporations. When a corporation is a party to such mortgage the affidavit
required may be made and subscribed by a director, trustee, cashier, treasurer, or
manager thereof, or by a person authorized on the part of such corporation to make or to
receive such mortgage. When a partnership is a party to the mortgage the affidavit may
be made and subscribed by one member thereof.
o
Sec. 7. Descriptions of property. The description of the mortgaged property shall be
such as to enable the parties to the mortgage, or any other person, after reasonable
inquiry and investigation, to identify the same.
o
If the property mortgaged be large cattle," as defined by section one of Act Numbered
Eleven and forty-seven, 2 and the amendments thereof, the description of said property
in the mortgage shall contain the brands, class, sex, age, knots of radiated hair
commonly known as remolinos, or cowlicks, and other marks of ownership as described
and set forth in the certificate of ownership of said animal or animals, together with the
number
and
place
of
issue
of
such
certificates
of
ownership.
If growing crops be mortgaged the mortgage may contain an agreement stipulating
that the mortgagor binds himself properly to tend, care for and protect the crop while
growing, and faithfully and without delay to harvest the same, and that in default of the
performance of such duties the mortgage may enter upon the premises, take all the
necessary measures for the protection of said crop, and retain possession thereof and
sell the same, and from the proceeds of such sale pay all expenses incurred in caring for,
harvesting, and selling the crop and the amount of the indebtedness or obligation
secured by the mortgage, and the surplus thereof, if any shall be paid to the mortgagor
or
those
entitled
to
the
same.
A chattel mortgage shall be deemed to cover only the property described therein and not
like or substituted property thereafter acquired by the mortgagor and placed in the same
depository as the property originally mortgaged, anything in the mortgage to the
contrary notwithstanding.
o
Sec. 8. Failure of mortgagee to discharge the mortgage. If the mortgagee, assign,
administrator, executor, or either of them, after performance of the condition before or
after the breach thereof, or after tender of the performance of the condition, at or after
the time fixed for the performance, does not within ten days after being requested
thereto by any person entitled to redeem, discharge the mortgage in the manner
provided by law, the person entitled to redeem may recover of the person whose duty it
is to discharge the same twenty pesos for his neglect and all damages occasioned
thereby in an action in any court having jurisdiction of the subject-matter thereof.
o
Sec. 9-12. (inclusive) 3
o
Sec. 13. When the condition of a chattel mortgage is broken, a mortgagor or person
holding a subsequent mortgage, or a subsequent attaching creditor may redeem the
same by paying or delivering to the mortgagee the amount due on such mortgage and
the reasonable costs and expenses incurred by such breach of condition before the sale
thereof. An attaching creditor who so redeems shall be subrogated to the rights of the
mortgagee and entitled to foreclose the mortgage in the same manner that the
mortgagee could foreclose it by the terms of this Act.
o
Sec. 14. Sale of property at public auction; Officer's return; Fees; Disposition of
proceeds. The mortgagee, his executor, administrator, or assign, may, after thirty
days from the time of condition broken (default), cause the mortgaged property, or any
part thereof, to be sold at public auction by a public officer at a public place in the
municipality where the mortgagor resides, or where the property is situated, provided at
least ten days' notice of the (1) time, (2) place, and (3) purpose of such sale has
been posted at two or more public places in such municipality, and the mortgagee, his
executor, administrator, or assign, shall notify the mortgagor or person holding under
him and the persons holding subsequent mortgages of the time and place of sale, either
by notice in writing directed to him or left at his abode, if within the municipality, or sent
by mail if he does not reside in such municipality, at least ten days previous to the sale.
o
The officer making the sale shall, within thirty days thereafter, make in writing a return of
his doings and file the same in the office of the register of deeds where the mortgage is
recorded, and the register of deeds shall record the same. The fees of the officer for
selling the property shall be the same as in the case of sale on execution as provided in
Act Numbered One hundred and ninety, 4 and the amendments thereto, and the fees of
the register of deeds for registering the officer's return shall be taxed as a part of the
costs of sale, which the officer shall pay to the register of deeds. The return shall
particularly describe the articles sold, and state the amount received for each article,
and shall operate as a discharge of the lien thereon created by the mortgage. The
proceeds of such sale shall be applied to the payment, first, of the costs and expenses of
keeping and sale, and then to the payment of the demand or obligation secured by such
mortgage, and the residue shall be paid to persons holding subsequent mortgages in
their order, and the balance, after paying the mortgages, shall be paid to the mortgagor
or person holding under him on demand.
o
If the sale includes any "large cattle," a certificate of transfer as required by section
sixteen of Act Numbered Eleven hundred and forty-seven 5 shall be issued by the
treasurer of the municipality where the sale was held to the purchaser thereof.
Sec. 16. This Act shall take effect on August first, nineteen hundred and six. Enacted,
July 2, 1906
o
o
CONFLICT BETWEEN CIVIL CODE & ACT 1508
o
o
o
o
o
o
o
pledge,
o
retained by
o Act 1508 Sec. 3

Sec. 3. Chattel mortgage defined.
A chattel mortgage is a
conditional sale of personal
property as security for the
payment of a debt, or the
performance of some other
obligation.
Sec. 4. Validity. A chattel
mortgage shall not be valid
against any person except the
mortgagor,
his executors or
administrators,
unless
the
possession of the property is
delivered to and retained by
the mortgagee or unless the
mortgage is recorded in the office
of the register of deeds of the
province in which the mortgagor
resides at the time of making the
same, or, if he resides without the
Philippine Islands, in the province
in which the property is situated.
Provided, however, That if the
property is situated in a different
province from that in which the
mortgagor resides, the mortgage
shall be recorded in the office of
the register of deeds of both the
province in which the mortgagor
resides and that in which the
property is situated, and for the
purposes of this Act the city of
Manila shall be deemed to be a
province.
o Civil Code Art. 2140

Art.
2140.
By
a
chattel
mortgage, personal property is
recorded
in
the
Chattel
Mortgage Register as a security
for the performance of an
obligation. If the movable, instead
of being recorded, is delivered
to the creditor or a third
person, the contract is a pledge
and not a chattel mortgage.
Is DELIVERY of personal property necessary to perfect a contract of Chattel Mortgage?

No.
o
PROVISION A:
If the property is delivered to the creditor, it is not a mortgage but a
o
PROVISION B:
according to Art. 2140 NCC.

In order to be valid, possession of the property must be delivered to &
mortgagee, according to Act 1508 Sec. 3.
o
o
o
o
o
Civil Code Provision PREVAILS because in case of conflicting provisions of law, the later
provision prevails Art. 2140 NCC. If you cannot harmonize both, then the later
provision prevails as it expresses the latest intention of the lawmakers.
Therefore, there is NO DELIVERY required in Chattel Mortgage.
But there are instances when the parties agree to DELIVER the property in a real
estate mortgage.
o
Its still a real estate mortgage & the mortgagee is referred to as MORTGAGEE IN
POSSESSION.
o Mortgagee in possession cannot appropriate the fruits.
o Rather, he has the rights & obligations of an antichretic creditor.
o
o What kind of obligations may be secured by a Chattel Mortgage?
o
- In REM & Pledge, one can secure future obligations through a Continuing Guaranty.
o
- But in Chattel Mortgage, only
PRESENT OBLIGATIONS can be secured.
o
FUTURE OBLIGATIONS cannot be secured.
o
- DRAG NET CLAUSE is not applicable to Chattel Mortgage, its only available to REM.
o
o But if there is promise to secure future obligations through the Chattel
Mortgage executed now,
o
- The creditor has the right to enforce the promise.
o
o Once the future obligation is incurred, the creditor can demand the (1) execution or (2)
amendment of the Deed of Chattel Mortgage.
o
o Effect if the debtor refuse to execute the new deed of chattel mortgage or amend it:
Consider the debtor IN DEFAULT because of the failure to put up the security
promised.
Art. 1198: When the debtor loses right to make use of the period
o
(2) When he does not furnish to the creditor the guaranties or securities which
he has promised.
In effect, creditor can demand payment obligation now.
o
o
o ACME Shoe, Rubber & Plastic Co. vs. CA
o
o
While a pledge, real estate mortgage, or antichresis may exceptionally secure

after-incurred obligations so long as these future debts are accurately described, a
chattel mortgage, however, can only cover obligations existing at the time the
mortgage is constituted. Although a promise expressed in a chattel mortgage
to include debts that are yet to be contracted can be a binding commitment
that can be compelled upon, the security itself, however, does not come into existence
or arise until after a chattel mortgage agreement covering the newly contracted debt is
executed either by concluding a (1) fresh chattel mortgage or by (2) amending the
old contract to conform with the form prescribed by the Chattel Mortgage Law.
o
o
Refusal on the part of the borrower to execute the agreement so as to cover the afterincurred obligation can constitute an act of default on the part of the borrower of the
financing agreement whereon the promise is written but, of course, the remedy of
foreclosure can only cover the debts extant at the time of constitution and during the life
of the chattel mortgage sought to be foreclosed.
1.
2.
3.
A.
o
o
o Who can constitute a Chattel Mortgage?
o
The mortgagor must be legally-capacitated to enter into a contract.
He must be the absolute owner of the property.
He must have free disposal of the property subject of the Chattel Mortgage.
o
o What can be the objects of Chattel Mortgage?
o
MOVABLES: ungathered/growing crops
vessel
shares of stock large
cattle
o
o REVOLVING STOCK IN TRADE (merchandise inventory in your retail establishment)
[EXC. to the rule that only future things may be the subject of Chattel Mortgage]
PD 533 Sec. 3: Large cattle as herein used shall include the cow, carabao, horse, mule, ass
or other domesticated member of the bovine family. [SWINE IS NOT INCLUDED.]
o
Mortgagee can even take care of the growing crops and harvest them. From the harvest, he
can apply the proceeds in the following order:
(1) reimbursable necessary expenses
(2) principal obligation
(3) the residue to subsequent mortgagees
(4) the balance to mortgagor
o
B. IMMOVABLES: by agreement of the parties such as one constituted on a building
- Even if the mortgage is registered, it will not bind 3rd persons. It will bind only the parties.
- The debtor cannot later on object that the property is real property and cannot be the proper
subject of Chattel Mortgage, by the principle of ESTOPPEL.
o
o SAMPLE CASE: Who has the RIGHT TO FORECLOSE?
o
o Assuming that subject property is a REAL PROPERTY, the following transactions
transpired.
o
o
o
Exam
ple 1
1/1/11
Chatte
l
Mortg
age A
&B
o
o
Example
2
1/1/11
Chattel
Mortgage
A&B
3/1/11
REM A &
C
o
o
Example
3
1/1/11
REM A &
B
3/1/11
REM A &
C
o
o
Example
4
1/1/11
Chattel
Mortgage
A&B
3/1/11
Chattel
Mortgage
A&C
o
o
o
o
o
o
o
Example 1: B can foreclose the mortgage if he fails to pay his debt or to fulfill his obligation. A
cannot object on the ground that real property is not a proper subject of Chattel Mortgage. A is
estopped from questioning the validity of the Chattel Mortgage. He cannot make an inconsistent
stand when there is an agreement to treat the real property such as a building as a personal
property. In this case, NO 3rd parties are concerned, unlike example 2.
But B, the mortgagee must comply with the foreclosure proceedings required by law for
foreclosure of REM.
In effect, PUBLICATION IS REQUIRED!
o
Manarang vs. Ofilada: The mere fact that a house was the subject of a chattel mortgage and was
considered as personal property by the parties does not make said house personal property for purposes of
the notice to be given for its sale at public auction. This ruling is demanded by the need for a definite, orderly
and well- defined regulation for official and public guidance and which would prevent confusion and
misunderstanding.
o
o
o
Notice Requirement (for property > P400):
PUBLICATION in a newspaper of general
circulation
o
once a week for two consecutive weeks.
o
o Example 2: Even if the first Chattel Mortgage is registered, it is not binding against C, a 3 rd party.
Because when a real property is the subject of a Chattel Mortgage, that mortgage is valid only
between the parties. Properly, a real property is not the subject of a Chattel Mortgage. As between
B & C, C, the real estate mortgagee has a better right to foreclose the property if A cannot
pay his debt or cannot fulfill his obligation. The remedy of B is to recover from the residue as he is
treated a subsequent mortgagee.
o
o
o
Tumalad vs. Vicencio: The view that parties to a deed of chattel mortgage may agree to consider a
house as personal property for the purposes of said contract, is good only insofar as the contracting
parties are concerned. It is based, partly, upon the principle of estoppel.
o
o
[Even though] there is no specific statement referring to the subject house as personal property, yet
by ceding, selling or transferring a property by way of chattel mortgage, defendants-appellants could
only have meant to convey the house as chattel, or at least, intended to treat the same as such, so that they
should not now be allowed to make an inconsistent stand by claiming otherwise.
o
o
o
o
o
o
Example 3 & 4: The first mortgage recorded shall prevail if they are of the same nature. B can
foreclose in both, not C.
o
o
o
o What is the FORM required?
o
It must be based on the form prescribed under Sec. 5 of Act 1508.
There must be SUFFICIENT DESCRIPTION of the property.
o
Sec. 7. The description of the mortgaged property shall be such as to enable the
parties to the mortgagee or any other person, after reasonable inquiry &
investigation, to identify the same.
o
o
REASONABLE DESCRIPTION RULE as termed in Saldana vs. Phil Guaranty.
o
o
In order to BIND 3rd PERSONS, the following are required:

A. Affidavit of Good Faith
B. Registration
o
Was the subject matter sufficiently described in this case?
o
o
o Giberson vs. Jureidini Bros. Inc.
o
o
Facts: H. K. Motoomul & Co. was becoming financially insolvent. A. N. Jureidini Bros.,
Inc., a larger creditor of Motoomul & Co., became aware of the precarious condition of
the latter, because of the diminishing payments on account of a debt. Ultimately,
Motoomul & Co. delivered to Jureidini Brothers, on May 24, 1921, one of the debtor's
Iloilo stores known as Bazar Aguila de Oro. On the same day also, credits
receivable belonging to Motoomul & Co. were transferred to Jureidini Bros. Still later, on
June 13, 1921, another stock of goods belonging to Motoomul & Co. passes to Jureidini
Bros.
o
o
SC: The Chattel Mortgage Law, in its Section 5, in describing what shall be deemed
sufficient to constitute a good chattel mortgage, includes the requirements of an affidavit
of good faith appended to the mortgage and recorded therewith. It has been held by
reputable courts that the absence of the affidavit of good faith vitiates a
mortgage as against creditors and subsequent encumbrancers.
o
o
SC: Section 7 of the Chattel Mortgage Law provides that "The description of the
mortgage property shall be such as to enable the parties to the mortgage, or any other
person, after reasonable inquiry and investigation, to identify the same." Identification
of the mortgaged property would be impossible in this case. referring to the
Iloilo store!
o
o
o
RULE: Affidavit of Good Faith is required only to bind 3rd persons. Absence of
Affidavit of Good Faith does not vitiate or does not invalidate the Chattel
Mortgage insofar as the parties are concerned.
o
Was the subject matter sufficiently described in this case?
o
o
o Jaca vs. Davao Lumber
o
o
o
o
o
This deed of chattel mortgage is void because it provides that the security stated therein
is for the payment of any and all obligations herein before contracted and which may
hereafter be contracted by the Mortgagor in favor of the Mortgagee.
In the case of Belgian Catholic Missionaries vs. Magallanes Press, this Court held:
A mortgage that contains a stipulation in regard to future advances in the credit will
take effect only from the date the same are made and not from the date of the
mortgage. Where the statute provides that the parties to a chattel mortgage must make
oath that the debt is a just debt, honestly due and owing from the mortgagor to the
mortgagee, it is obvious that a valid mortgage cannot be made to secure a debt to be
thereafter contracted.
o
o
If there is a chattel mortgage on a vessel, what is the effect of a special affidavit of
good faith?
o
o
o
o CIFC vs. CA
o
o
The special affidavit of good faith, on the other hand, is required only for the purpose
of transforming an already valid mortgage into a "preferred mortgage." Thus, the
abovementioned affidavit is not necessary for the validity of the chattel mortgage itself
but only to give it a preferred status.
o
o
o
In effect, if there is no special affidavit of good faith, then the mortgagee is only a
SUBSEQUENT MORTGAGEE.
o
Is there a sufficient description of the property if there exists a catch-all phrase?
o
o
o Saldana vs. Phil. Guaranty
o
o
o
o
o
o
A Chattel Mortgage was made on the following properties: a building of strong materials,
used for restaurant business, located in front of the San Juan de Dios Hospital at Dewey
Boulevard, Pasay City, and the following personal properties therein contained: 1 Radio,
Zenith, cabinet type etc. And all other furniture's, fixtures or equipment found in
the said premises. Subsequently, there was a writ of execution on some of the
properties in favor of Hospital de San Juan de Dios by virtue of a judgment. Mortgagee
filed a third-party claim asserting that some of the properties levied are subject of his
chattel mortgage.
SC: Section 7 of Act No. 1508, commonly and better known as the Chattel Mortgage
Law, does not demand a minute and specific description of every chattel
mortgaged in the deal of mortgage but only requires that the description of the
properties be such "as to enable the parties in the mortgage, or any other person, after
reasonable inquiry and investigation to identify the same."
The specifications in the chattel mortgage contract in the instant case, we believe, are in
substantial compliance with the "reasonable description rule" fixed by the
Chattel Mortgage Act. We may notice in the agreement, moreover, that the phrase in
question is found after an enumeration of other specific articles. It can thus be
reasonably inferred therefrom that the "furnitures, fixture and equipment" referred to are
properties of like nature, similarly situated or similarly used in the restaurant of
the mortgagor located in front of the San Juan de Dos Hospital at Dewey Boulevard,
Pasay City, which articles can be definitely pointed out or ascertain by simple
inquiry at or about the premises. Note that the limitation found in the last paragraph
of section 7 of the Chattel Mortgage Law 1 on "like or similarly situated properties" make
reference to those "thereafter acquired by the mortgagor and placed in the same
depository as the property originally mortgaged", not to those already existing and
originally included at the date of the constitution of the chattel mortgage.
o
o
Place of Registration:
A. In the province where the mortgagor resides
B. In the province in which the property is situated
o
o Sample Case: If the subject of the Chattel Mortgage includes PLDT shares of stocks.
The mortgage should be registered in (1) the Register of Deeds of the province where the
mortgagor resides and (2) the Register of Deeds in Makati where the principal office of
PLDT is located. It is not required that the Chattel Mortgage be registered in the
Securities & Exchange Commission (SEC).
o
1.) If the subject of the Chattel Mortgage is a vessel, the mortgage must be registered in (1) the
Register of Deeds of the province where the mortgagor resides and (2) the MARINA or Maritime
Industry Authority where the vessel is registered.
o
2.) If the subject of the Chattel Mortgage is a motor vehicle, the mortgage must be registered in (1)
the Register of Deeds of the province where the mortgagor resides and (2) the LTO or the Land
Transportation Office.
o
3.) If the subject of the Chattel Mortgage is a public utility vehicle like a jeepney, the mortgage must
be registered in (1) the Register of Deeds of the province where the mortgagor resides and (2) the
LTFRB or the Land Transportation Franchising & Regulatory Board.
o
o
identify
o
o
o
CLAUSE.
Movable Property Described

Including everything if there is a SPECIAL CLAUSE + you can reasonably
o
o
o
o
replenished
o
o
SUBJECT MATTER OF THE CHATTEL MORTGAGE:
o
o
After-Acquired Properties
CM is just like REM w/c cannot be executed on FUTURE PROPERTIES.
CM is unlike REM w/c can be constituted on FUTURE OBLIGATIONS DRAG NET
INVALID Stipulation: Chattel Mortgage covers the following properties & such
other similar properties of
o
the mortgagor to be acquired in the future.
EXCEPTION: Revolving Stock In Trade future merchandise w/c is constantly

Whatever is the replacement is the subject of the Chattel Mortgage. VALID
DISCHARGE mortgagor is entitled to a discharge when the obligation has already

been paid.
o
The Chattel Mortgage becomes void upon the fulfillment of the obligation.
o
This extinguishes the principal obligation. Consequently, the accessory contract is
extinguished.
o
Upon (1) ACTUAL PAYMENT or
o
(2) TENDER OF PAYMENT & CONSIGNATION
o
o Failure to Give a Discharge: penalized with PHP 20 + ACTUAL DAMAGES
o
Inflation is not considered in the computation of the fee.
o
There was no instance of extraordinary inflation in the Philippines.
o
o
o
o
o
o
o
o
REDEMPTION PRIOR TO FORECLOSURE (in Chattel Mortgage)
o
o
Perfection of Chattel Mortgage

Foreclosure
1st:
Foreclosure
2nd:
DEFAULT
A <-> B
for 100k
NO RIGHT OF REDEMPTION
A <-> C
for 100k
Redemption Prior to
o
Demand)
o
In Chattel Mortgage, foreclosure only happens
In REM, foreclosure happens
(a) after default (E.J. or Judicial
(a) after the finality of the judgment

(b) after the foreclosure of the
real property
o
o Who can redeem the mortgaged property?
o
(1) Mortgagor
(2) Subsequent Mortgagee
- C may pay the obligation of A, the debtor/ mortgagor to B, the preferred creditor/ first mortgagee.
- C now steps into the shoes of the B, preferred creditor/ first mortgagee.
- In effect, C is now the creditor of A for 200,000.
- C, the subsequent mortgagee, may foreclose the property thereafter.
o
o The law expressly allows the subsequent mortgagee to redeem. The first mortgagee
cannot refuse redemption.
o EXTRAJUDICIAL FORECLOSURE of CHATTEL MORTGAGE (CM)
o
o
o
o
o
o
The law expressly allows the mortgagee to extra-judicially foreclose the mortgage
property by causing the sale of the property by a PUBLIC OFFICER.
NOTE: Although, Rule 68 only applies to judicial foreclosure of a Real Estate Mortgage
(REM), the chattel mortgagee MAY OPT to resort to JUDICIAL FORECLOSURE.
However, the most common form of foreclosure of chattel mortgage is extrajudicial. The
same procedure laid down in A.M. No. 99-10-05-0 (August 7, 2001) on E.J. Foreclosure of
REM applies to E.J. Foreclosure of Chattel Mortgage.
While the E.J. foreclosure of REM does not prescribe the period to cause the foreclosure
sale, in the foreclosure of chattel mortgage, the foreclosure must be made within 30
days from default. (from breach of mortgage)
o
o
Sec. 14. Sale of property at public auction; Officer's return; Fees; Disposition of proceeds. The
mortgagee, his executor, administrator, or assign, may, after thirty days from the time of condition broken
(default), cause the mortgaged property, or any part thereof, to be sold at public auction by a public officer at
a public place in the municipality where the mortgagor resides, or where the property is situated, provided at
least ten days' notice of the (1) time, (2) place, and (3) purpose of such sale has been posted at two or
more public places in such municipality, and the mortgagee, his executor, administrator, or assign, shall notify
the mortgagor or person holding under him and the persons holding subsequent mortgages of the time and
place of sale, either by notice in writing directed to him or left at his abode, if within the municipality, or sent
by mail if he does not reside in such municipality, at least ten days previous to the sale.
o
o
o
REM Foreclosure Sale NO PERIOD

APPRECIATES
CM Foreclosure Sale
30 DAYS FROM DEFAULT
PERSONAL PROPERTY DEPRECIATES
REAL PROPERTY
o
o
*** The difference may be due to the generally perishable nature of movables compared to
real property.
o
o REPLEVIN
o
o There is no requirement to deliver the movable in Chattel Mortgage. But you cannot
cause the foreclosure sale if you are NOT IN POSSESSION of the personal property. You
first have to initiate proceedings to recover property from the debtor. The proper
remedy is to file a REPLEVIN suit before you can sell the property because in foreclosure
sale of Chattel Mortgage, you need to immediately deliver the movable property to
the purchaser/bidder. Possession is immediately delivered to the buyer in foreclosure of
Chattel Mortgage.
o
o NOTICE REQUIREMENTS
o
o REM @ least 20 days notice with publication once a week for 2 consecutive weeks
o CM @ least 10 days notice of the time, place and purpose of such sale to be
posted in 2 or more public places
o
o
Notice must be sent in writing to mortgagor and subsequent mortgagees.

o
Personal service if the mortgagor and subsequent mortgagees reside in the

same municipality.
o
Registered mail if the mortgagor and subsequent mortgagees do not reside

in the same municipality.
Foreclosure sale will be conducted by a public officer under Act 1508 or by a

justice of the peace
o
under Act 3135. Under A.M. No. 99-10-05-0 (August 7, 2001), public officer
refers to the (a)
o
notary public and the (b) sheriff.
o
o Where is the foreclosure sale of Chattel Mortgage conducted?
o
Either in
the municipality where the mortgagor resides or

o
the municipality where the property is located

o
o Where is the foreclosure sale of Real Estate Mortgage conducted?
o
o
o
Only in
the municipality where the property is located
How to dispose of the proceeds from the foreclosure sale of Chattel Mortgage?
LEGAL COSTS PRINCIPAL OBLIGATION SUBSEQUENT MORTGAGEE

MORTGAGOR
o Can the creditor recover the deficiency?
In REM, the creditor can recover the deficiency.
In CM, the creditor can recover the deficiency by filing an ordinary action for the recovery of the
deficiency.
o
o
o
PAMECA Wood Treatment Plant vs. CA: In Chattel Mortgage, if the creditor is not permitted to
retain the excess and that the mortgagor is entitled thereto, then there is a corollary obligation for the debtor
to pay the deficiency in case of reduction on the price of the chattels at public auction. Debtor is, therefore,
obliged to pay the deficiency.
o
o When is the purchaser/bidder placed in possession of the property?
o
Purchaser of personal property in CM is immediately placed in the possession of the property.
Purchaser of real property in REM is not immediately placed in the possession of the property.
o
EXC. if the purchaser is able to secure from the court the issuance of a writ of
possession.
o
o Can the mortgagor redeem the personal property in Chattel Mortgage?
o
o Unlike the foreclosure of REM where the right of redemption may be granted in certain
instances, in foreclosure of chattel mortgage, there is NO RIGHT OF REDEMPTION.
o
o
Paray vs. Rodriguez: No right of redemption exists over personal property such as shares of stock.
No law or jurisprudence establishes or affirms such right. The right of redemption, as affirmed by Rule 39,
applies only to execution sales, more precisely, execution sales of real property.
o
With regard to redemption of chattel mortgage, redemption only happens after

default & prior to foreclosure.
o
o
CHAPTER 4: ANTICHRESIS
o
o
o
o
o
o
o
o
o
o
o
o
o
o
LIBRARY OF LAWS
Art. 2132. By the contract of antichresis the creditor acquires the right to receive the
fruits of an immovable of his debtor, with the obligation to apply them to the payment of
the interest, if owing, and thereafter to the principal of his credit.
Art. 2133. The actual market value of the fruits at the time of the application thereof to
the interest and principal shall be the measure of such application.
Art. 2134. The amount of the principal and of the interest shall be specified in writing;
otherwise, the contract of antichresis shall be void.
Art. 2135. The creditor, unless there is a stipulation to the contrary, is obliged to pay
the taxes and charges upon the estate. He is also bound to bear the expenses necessary
for its preservation and repair. The sums spent for the purposes stated in this article shall
be deducted from the fruits.
Art. 2136. The debtor cannot reacquire the enjoyment of the immovable without first
having totally paid what he owes the creditor. But the latter, in order to exempt himself
from the obligations imposed upon him by the preceding article, may always compel the
debtor to enter again upon the enjoyment of the property, except when there is a
stipulation to the contrary.
Art. 2137. The creditor does not acquire the ownership of the real estate for nonpayment of the debt within the period agreed upon. Every stipulation to the contrary
shall be void. But the creditor may petition the court for the payment of the debt or the
sale of the real property. In this case, the Rules of Court on the foreclosure of mortgages
shall apply.
o
o
o
o
o
o
o
Art. 2138. The contracting parties may stipulate that the interest upon the debt be
compensated with the fruits of the property which is the object of the antichresis,
provided that if the value of the fruits should exceed the amount of interest allowed by
the laws against usury, the excess shall be applied to the principal.
Art. 2139. The last paragraph of Article 2085, and Articles 2089 to 2091 are applicable
to this contract.
REM:
It is NOT REQUIRED (for perfection) that the property be DELIVERED
to the CREDITOR.
The property may, however, be DELIVERED to the CREDITOR, IF THEY SO
AGREE.
In the 2nd case, the mortgagee is called a MORTGAGEE IN POSSESSION.
o
o
Antichresis:
The creditor is entitled to receive the fruits from an immovable so that he
can apply the fruits to the payment of the interest, if any, the balance paid to the payment
of the principal.
o
o
o
Manresa:
It is not an accessory undertaking but a separate undertaking because
the
fruits received are used as payment to the interest and principal.
o
o
o
o
o
o
o
Correct View:
Separate undertaking, in the sense that when the debtor
defaults, the creditor can file a
petition for the foreclosure of the property.
ANTICHRESIS CREATES A REAL RIGHT
Right to receive the fruits follows the property, whoever the owner may be, for as long as it is
REGISTERED.
The creditor is not deprived to receive the fruits if there was a subsequent sale/transfer on the
property.
Registration is NOT REQUIRED for VALIDITY.
o POSSESSION IS NOT REQUIRED TO BE TRANSFERRED TO THE CREDITOR

o
One can receive the fruits even without possessing the fruit-bearing real property itself.
The debtor can remain in possession of the property but the creditor receives the fruits.
o
o Art. 2085 LAST PARAGRAPH is APPLICABLE to ANTICHRESIS:
o
o
That they be constituted to secure fulfillment of a principal obligation.

o
That the pledgor or mortgagor be the absolute owner of the thing

pledged or mortgaged.
o
That the persons constituting the pledge or mortgage have the free
disposal of their property and
o
in the absence thereof, that they be legally authorized for the purpose.
o
o
Third parties who are not parties to the principal obligation may
secure the latter by
o
pledging or mortgaging their own property.
o
o Art. 2089 2091 are APPLICABLE to ANTICHRESIS:
o
o
Art. 2089. A pledge or mortgage is indivisible, even though the debt may be divided among the
successors in interest of the debtor or of the creditor. Therefore, the debtor's heir who has paid a part of the debt
cannot ask for the proportionate extinguishment of the pledge or mortgage as long as the debt is not
completely satisfied. Neither can the creditor's heir who received his share of the debt return the pledge or cancel
the mortgage, to the prejudice of the other heirs who have not been paid.
o
o
From these provisions is expected the case in which, there being several things given in mortgage or
pledge, each one of them 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.
o
o
Art. 2090. The indivisibility of a pledge or mortgage is not affected by the fact that the debtors are not
solidarily liable.
o
o
Art. 2091. The contract of pledge or mortgage may secure all kinds of obligations, be they pure or
subject to a suspensive or resolutory condition.
o
o
o
o
o
o
o
o
What is required is that the person constituting the antichresis has the RIGHT TO
ENCUMBER the property.
OBJECT OF ANTICHRESIS:
industrial fruits
PLANS OF DEVELOPING
FOR VALIDITY:
o
o
o
o
o
fruit-bearing
real
property
natural,
civil,
BARREN LAND OVER W/C THE OWNER HAS NO
PRINCIPAL + INTEREST must be IN WRITING.

VERBAL AGREEMENT
It can be another contract but not antichresis.
FOR ENFORCEABILITY:REGISTRATION is the operative act that will bind 3rd persons.
To bind the parties, it must be in writing; in order to bind 3rd parties, it must be registered
under PD 1529.
o
A. RIGHTS OF THE ANTICHRETIC CREDITOR
o
1.) Right to receive fruits
o
o Fruits shall be compensated for the interest w/o mentioning the specific amount of interest is
not valid because interest must be stipulated in writing in the agreement evidencing the
antichresis.
o Art. 2138. The contracting parties may stipulate that the interest upon the debt be
compensated with the fruits of the property which is the object of the antichresis, provided
that if the value of the fruits should exceed the amount of interest allowed by the laws
against usury, the excess shall be applied to the principal.
o In this case, the debtor may ask the court to reduce the interest for being unconscionable
(as Usury Law is suspended) w/c the court may or may not grant.
o
o Q: Can the parties stipulate that: Upon maturity of the obligation, the debtor is
obliged to pay the FULL
o
AMOUNT of the obligation. Unless debtor pays the full amount of the obligation, the
creditor is entitled to
o
receive the fruits from the immovable property?
o
o A: NO, it is not a valid agreement. It defeats the purpose of the antichresis
agreement if the debtor is still
o
obliged to pay the full amount of the obligation when the interest & the principal
were supposed to be paid
o
already from the fruits.
o
o Implication: The fruits received by the creditor were not considered in the payment of
interest & principal.
o
2.) Right of foreclosure = JUDICIAL FORECLOSURE under Rule 68
o
o Upon default by the debtor, the antichretic creditor may file a petition for judicial
foreclosure.
In actuality, he has 2 options:

Sue for specific performance
File petition for judicial foreclosure
(right to cause the sale following Rule 68)
o
o
B. OBLIGATIONS OF THE ANTICHRETIC CREDITOR
o
1.) Pay the taxes and charges upon the estate unless there is a contrary stipulation
2.) Pay the necessary expenses for the preservation and repair
o
o Unless, a contrary stipulation is provided such as when the debtor is required to pay
them.
o The sum paid for these expenses shall be deducted from the fruits.
o Art. 2135. The creditor, unless there is a stipulation to the contrary, is obliged to pay
the taxes and charges upon the estate. He is also bound to bear the expenses necessary
for its preservation and repair. The sums spent for the purposes stated in this article shall
be deducted from the fruits.
o If the fruits are not enough to cover the taxes & other necessary expenses, the creditor is
still obliged. But if he does not want to take the expenses out of his pocket, then he can
demand the debtor to take over possession of the property.
o
Remedy for creditor if doesnt want to perform these obligations:
o
o
Art. 2136. The debtor cannot reacquire the enjoyment of the immovable
without first having totally paid what he owes the creditor. But the latter, in order to
exempt himself from the obligations imposed upon him by the preceding article,
may always compel the debtor to enter again upon the enjoyment of the
property, except when there is a stipulation to the contrary.
o
o Q: If the creditor failed to pay the taxes, what is the liability of the creditor?
o A: He shall be held liable for DAMAGES.
o
o REM + CREDITOR GIVEN POSSESSION OF THE PROPERTY + RIGHT TO ENJOY THE
FRUITS
o
o Q: Is this a mortgage contract or an antichresis?
o A: It is still a contract of mortgage where you call the mortgagee as MORTGAGEE IN
POSSESSION.
o
o
A mortgagee in possession has the obligations of an antichretic creditor.
o
o Mortgagee in possession needs to account for the fruits and apply it to the interest owing to
the principal.
o
a.) If there is an express waiver in the mortgage contract of the creditors right over
the fruits & there is no stipulation whether or not the fruits shall be applied to the
payment of interest, the creditor is NOT OBLIGED TO ACCOUNT for the fruits.
o
b.) If there is no express waiver in the mortgage contract of the creditors right over
the fruits & there is no stipulation whether or not the fruits shall be applied to the
payment of interest, the creditor is OBLIGED TO ACCOUNT for the fruits.
o
What is the effect on the creditor if he is a MORTGAGEE IN POSSESSION?
o
o
o Diego vs. Fernando
o
o
Facts: The main issue raised is whether the contract between the parties is one of
mortgage or of antichresis. Appellant, while admitting that the contract Exhibit "A" shows
a deed of mortgage, contends that the admitted fact that the loan was without
interest, coupled with the transfer of the possession of the properties mortgaged to
the mortgagee, reveals that the true transaction between him and appellee was one of
antichresis. This was his contention. But as correctly pointed out by appellee and the
lower court, however, it is not an essential requisite of a mortgage that possession of the
mortgaged premises be retained by the mortagagor.
o
To be antichresis, it must be expressly agreed between creditor and debtor
that the former, having been given possession of the properties given as
security, is to apply their fruits to the payment of the interest, if owing, and
thereafter to the principal of his credit. So that if a contract of loan with security
does not stipulate the payment of interest but provides for the delivery to the creditor by
the debtor of the property given as security, in order that the latter may gather its fruits,
without stating that said fruits are to be applied to the payment of interest, if any, and
afterwards that of the principal, the contract is a mortgage and not antichresis. The lower
court, therefore, did not err in holding that the contract Exhibit "A" is a true mortgage
and not an antichresis. The true position of appellee herein under his contract with
appellant is a "mortgage in possession." As such mortgagee in possession, his rights
and obligations are similar to those of an antichretic creditor.
o
SC: The doctrine laid down in this case is that: If the debtor did not expressly waive
his right to receive the fruits, therefore, he is obliged to account for the fruits.
Corollarily, by implication, if he expressly waives his right to receive the fruits, then,
there is no obligation to account for the fruits and the debtor is still obliged to pay the
full amount of the obligation.
o
Note: This is a Real Estate Mortgage (REM) where the creditor is given possession of
the mortgaged property like a coconut plantation. In this case, the mortgagee in
possession has the same obligations of an antichretic creditor.
o
o
o
o
o
o
o
o
o
o
RA # 10142: FINANCIAL REHABILITATION & INSOLVENCY ACT OF 2010 (FRIA)
o Section 4: Definition of Terms

o
o
(k) Debtor shall refer to, unless specifically excluded by a provision of this Act, a sole
proprietorship duly registered with the Department of Trade and Industry (DTI), a partnership duly
registered with the Securities and Exchange Commission (SEC), a corporation duly organized and
existing under Philippine laws, or an individual debtor who has become insolvent as defined herein.
o
o FRIA applies to both:
(a) individual debtor
(b) juridical entity
(corporations & partnerships)
o
o Partnership juridical entity exists at the time of the agreement to contribute
CONSENSUAL CONTRACT
o Where two or two or more persons contribute money, industries in a common fund with
intention of dividing the profits among themselves.
o
o Corporation acquires juridical personality from the time it is registered in the
Securities & Exchange Commission
o Issuance of the certificate of incorporation active intervention of the State
o
o
(p) Insolvent shall refer to the financial condition of a debtor that is generally unable to pay
its or his liabilities as they fall due in the ordinary course of business or has liabilities that are
greater than its or his assets.
o
o 2 Meanings of Insolvent
o
a.) Unable to pay its/his liabilities as they fall due in the ordinary course of business
o
o When the debtor has LIQUIDITY problems although he has other assets such as real
property which, however, cannot be readily converted to cash.
o Liquidity means the ability to satisfy an obligation when they become due.
o NO CASH, but many land & buildings, and yet, cannot pay outstanding debts now.
o
o
o
o
o
o
o
ASSETS
Cash
0.00
Accounts Receivables
550,000.00
Real Estate Property
20,000,000.00
Goodwill
5,000,000.00
TOTAL ASSETS
25,550,000.00
o
o
o
o
o
o
LIABILITIES
Short Term Liabilities
2,000,000.00
Long Term Liabilities
11,500,000.00
EQUITY
Capital Stock
12,050,000.00
TOTAL LIAB. + EQUITY
25,550,000.00
o
b.) Liabilities greater than his assets
o
o TOTAL LIABILITIES > TOTAL ASSETS
o Insolvency, in the strict technical & traditional sense, occurs when your liabilities exceed
your assets.
o
o
o
o
o
o
o
o
o
o
ASSETS
Cash
20,000.00
Accounts Receivables
100,000.00
Real Estate Property
2,000,000.00
Prepaid Expenses
50,000.00
TOTAL ASSETS
2,170,000.00
4 REMEDIES FOR INSOLVENCY:
o
o
o
o
o
o
LIABILITIES
Long Term Liabilities
5,000,000.00
TOTAL LIAB.
5,000,000.00
o
o
1.) An insolvent, if it has difficulty in meeting its obligations, can file VOLUNTARY PETITION FOR
REHABILITATION with the RTC Special Commercial Court (no court designation yet since no IRR
yet)
o
o Many creditors would object rehabilitation since they are forced to give concessions such as
waiving interests, converting debt to equity.
o
2.) His/its creditors can file INVOLUNTARY PETITION FOR REHABILITATION. It is initiated by the
creditor. This is the Court-Supervised Rehabilitation.
o
3.) Juridical debtor may not seek the assistance of the court. It can meet with its creditors and
decide on a REHABILITATION PLAN called a PRE-NEGOTIATED REHABILITATION PLAN. If
agreed upon, they will just file a petition in court for the approval of this plan.
o
4.) LIQUIDATION, not just rehabilitation
o
o Liquidation involves the sale & distribution of assets.
o In liquidation, the creditor cannot recover the full amount of the obligation. The assets are
clearly not sufficient to answer all the liabilities, which is why creditors object to liquidation
and prefer rehabilitation.
o
o (gg) Rehabilitation shall refer to the restoration of the debtor to a condition of successful
operation and solvency, if it is shown that its continuance of operation is economically feasible
and its creditors can recover by way of the present value of payments projected in the plan,
more if the debtor continues as a going concern than if it is immediately liquidated.
o
o In rehabilitation, a rehabilitation receiver is appointed, who will study the rehabilitation plan
whether or not it is feasible. Rehabilitation measures may include dacion en pago or
conversion of debt to equity.
o Upon the issuance of Commencement Order, the court will also issue a Stay Order in
rehabilitation.
o
o Section 15. Action on the Petition. - If the court finds the petition for rehabilitation to be
sufficient in form and substance, it shall, within five (5) working days from the filing of
the petition, issue a Commencement Order. If, within the same period, the court finds the
petition deficient in form or substance, the court may, in its discretion, give the petitioner/s a
reasonable period of time within which to amend or supplement the petition, or to submit such
documents as may be necessary or proper to put the petition in proper order. In such case, the
five (5) working days provided above for the issuance of the Commencement Order shall be
reckoned from the date of the filing of the amended or supplemental petition or the submission
of such documents.
o
Liquidation of Insolvent Juridical Debtor:
o
o
o
o
o
The juridical debtor himself may file a VERIFIED PETITION FOR LIQUIDATION.
o
Verification that I am the President of XYZ Corp., I have read the contents and all the
material facts alleged are true based on my personal knowledge or based on authentic
documents.
Debtor will allege and include in the petition:
o
(a) a schedule of debts
o
(b) list of creditors
o
(c) amount owing to them
o
(d) the date when they become due
o
(e) any collaterals or security and
o
(f) an inventory of assets including accounts receivables.
Debtor also needs to submit 3 names/nominees to be appointed by the court as
LIQUIDATOR.
Under the Civil Code provision on Concurrence & Preferrence of Credits
o
o
Civil Code
RA # 10142 FRIA
Provisions
o ASSIGNEE
LIQUIDATOR
o
o Pendency of the Rehabilitation Proceedings:
o
o
The juridical debtor can file just a VERIFIED MOTION TO CONVERT
o
the rehabilitation proceedings liquidation proceedings
o
o
So, in effect, there are 2 modes for Voluntary Liquidation:
o
1.) Verified Petition if there is no pending proceeding for rehabilitation
2.) Verified Motion to convert the pending rehabilitation into liquidation
o
o For Involuntary Liquidation:
o
o Section 91. Involuntary Liquidation. - Three (3) or more creditors the aggregate of
whose claims is at least either One million pesos (Php1,000,000,00) or at least
twenty-five percent (25%0 of the subscribed capital stock or partner's
contributions of the debtor, whichever is higher, may apply for and seek the
liquidation of an insolvent debtor by filing a petition for liquidation of the
debtor with the court. The petition shall show that:
o
(a) there is no genuine issue of fact or law on the claims/s of the petitioner/s, and
that the due and demandable
o
payments thereon have not been made for at least one hundred eighty (180)
days or that the debtor has
o
failed generally to meet its liabilities as they fall due; and
o
(b) there is no substantial likelihood that the debtor may be rehabilitated.
o At any time during the pendency of or after a rehabilitation court-supervised or prenegotiated rehabilitation proceedings, three (3) or more creditors whose claims is at
least either One million pesos (Php1,000,000.00) or at least twenty-five percent (25%) of
the subscribed capital or partner's contributions of the debtor, whichever is higher, may
also initiate liquidation proceedings by filing a motion in the same court where the
rehabilitation proceedings are pending to convert the rehabilitation proceedings
into liquidation proceedings. The motion shall be verified, shall contain or set forth
the same matters required in the preceding paragraph, and state that the movants are
seeking the immediate liquidation of the debtor.
o If the petition or motion is sufficient in form and substance, the court shall issue an
Order:
o
(1) directing the publication of the petition or motion in a newspaper of general
circulation once a week for two
o
(2) consecutive weeks; and
o
(2) directing the debtor and all creditors who are not the petitioners to file their
comment on the petition or
o
motion within fifteen (15) days from the date of last publication.
o If, after considering the comments filed, the court determines that the petition or motion
is meritorious, it shall issue the Liquidation Order mentioned in Section 112 hereof.
o
o Requirements before creditors can file a petition for Involuntary Liquidation:
o
1.) There must be @ least 3 creditors with an aggregate credit of @ least Php 1,000,000.
2.) There must be @ least 3 creditors with an aggregate credit of @ least 25% of the subscribed
capital stock/ partners contributions.
o
o WHICHEVER IS HIGHER !!!
o
o Sidenote: Atty. Adviento believes this should be outstanding capital stock because
outstanding capital stock excludes treasury shares. Treasury shares are those shares sold to 3rd
persons and bought back by the corporation. Even under the Corporation Code, voting
requirements are based on outstanding capital stock, not on subscribed capital stock.
o
o SAMPLE COMPUTATION: to determine eligibility for petition for involuntary liquidation
o
o
o
Authorized
Capital Stock
Subscribed
Capital Stock
4,000,00
0.00
Paid Up Capital
Stock
1,000,000
.00
Aggregate Credit
of 3 Creditors
ACTUAL
Aggregate Credit
of 3 Creditors
REQUIRED
which is 25% of
the Subscribed
Capital Stock
500,000.
00
700,0
00.00
1,000,00
0.00
625,0
00.00
o
They
CAN NOT
file a
petition
for
involunt
ary
liquidati
on.
They
CAN
file a
petiti
on for
involu
ntary
liquid
ation.
o
Authorized capital stock (ACS) is the maximum capital stock that the stockholders can
purchase or subscribe from the corporation.
o Only @ least 25% of ACS is subscribed capital stock which is bought by the stockholders.
o Paid up capital stock is the amount actually paid by the purchasers.
o Aggregate Credit must be @ least 25% of the subscribed capital stock.
o
In example A, 25% of 4,000,000 is 1,000,000. Since the aggregate credit is only
500,000, then the 3 creditors cannot file a petition for involuntary liquidation.
In example B, 25% of 2,500,000 is 625,000. Since the aggregate credit is 700,000,
then the 3 creditors can file a petition for involuntary liquidation.
o
o During the pendency of rehabilitation, these three creditors may file a VERIFIED
MOTION only in the same rehabilitation proceedings to convert rehabilitation into
liquidation.
o
o Note: The courts cannot compel the creditors to file their claims as it is in contravention
with the constitutional guarantee of non-impairment of obligations.
o
o SUFFICIENT IN FORM & SUBSTANCE, 2 ORDERS WILL BE ISSUED:
o
Court will order the publication in a newspaper of general circulation once a week for 2
consecutive weeks.
o
o
(ff) Publication notice shall refer to notice through publication in a newspaper of general
circulation in the Philippines on a business day for two (2) consecutive weeks.
o
Court will order the creditors to file their comments.
o If the court finds the petition for liquidation meritorious, it will now issue a Liquidation
Order.
o
o INDIVIDUAL DEBTOR can also file a PETITION FOR VOLUNTARY LIQUIDATION
o
If his properties are not enough to cover his debts amounting to Php 500,000, he can file such
petition.
Debtor will allege and include in the petition:
o
2.
o
Php
10,000,00
0.00
Exam
ple B
o
Php
10,00
0,00.0
0
o
2,500
,000.
00
o
1,000,
000.0
0
o
1.
Example
A
o
(a) a schedule of debts
o
(b) list of creditors
o
(c) amount owing to them
o
(d) the date when they become due
o
(e) any collaterals or security and
o
(f) an inventory of assets including accounts receivables.
o
Where to file: in the court of the province/city in w/c he has resided for 6 months prior to filing of
this petition.
o
o JURIDICAL DEBTOR vs. INDIVIDUAL DEBTOR:
o
o I
n
d
i
v
i
d
u
1. Act of Filing = Act of Insolvency (if sufficient in form & substance)
a
2. Liquidation Order w/in 5 days from filing
l
D
e
b
t
o
r
J
u
r
i
d
i
c
a
l
1. Order by the court requiring the publication once a week for 2 consecutive
weeks
2. Order by the court to direct the creditors to file their comments
3. Liquidation Order
D
e
b
t
o
r
o
o
o
o
Verified Petition for Liquidation against Individual Debtor for ACTS OF

INSOLVENCY:
Section 105. Petition; Acts of Insolvency. - Any creditor or group of creditors with a
claim of, or with claims aggregating at least Five hundred thousand pesos (Php
500,000.00) may file a verified petition for liquidation with the court of the
province or city in which the individual debtor resides.
The following shall be considered acts of insolvency, and the petition for liquidation shall
set forth or allege at least one of such acts:
o
o
ACTS OF INSOLVENCY
o
(a) That such person is about to depart or has departed from the Republic of the Philippines,
with intent to defraud his creditors;
o
(b) That being absent from the Republic of the Philippines, with intent to defraud his
creditors, he remains absent;
o
(c) That he conceals himself to avoid the service of legal process for the purpose of
hindering or delaying the liquidation or of defrauding his creditors;
o
(d) That he conceals, or is removing, any of his property to avoid its being attached or taken
on legal process;
o
(e) That he has suffered his property to remain under attachment or legal process for three
(3) days for the purpose of hindering or delaying the liquidation or of defrauding his creditors;
o
(f) That he has confessed or offered to allow judgment in favor of any creditor or claimant for
the purpose of hindering or delaying the liquidation or of defrauding any creditors or claimant;
o
(g) That he has willfully suffered judgment to be taken against him by default for the
purpose of hindering or delaying the liquidation or of defrauding his creditors;
o
(h) That he has suffered or procured his property to be taken on legal process with intent to
give a preference to one or more of his creditors and thereby hinder or delay the liquidation or
defraud any one of his creditors;
o
(i) That he has made any assignment, gift, sale, conveyance or transfer of his estate,
property, rights or credits with intent to hinder or delay the liquidation or defraud his creditors;
o
(j) That he has, in contemplation of insolvency, made any payment, gift, grant, sale,
conveyance or transfer of his estate, property, rights or credits;
o
(k) That being a merchant or tradesman, he has generally defaulted in the payment of his
current obligations for a period of thirty (30) days;
o
(l) That for a period of thirty (30) days, he has failed, after demand, to pay any moneys
deposited with him or received by him in a fiduciary; and
o
(m) That an execution having been issued against him on final judgment for money, he shall
have been found to be without sufficient property subject to execution to satisfy the judgment.
o The petitioning creditor/s shall post a bond in such as the court shall direct, conditioned
that if the petition for liquidation is dismissed by the court, or withdrawn by the
petitioner, or if the debtor shall not be declared an insolvent the petitioners will
pay to the debtor all costs, expenses, damages occasioned by the proceedings and
attorney's fees.
o
o
BOND FURNISHED BY THE CREDITOR:
o
to answer for damages if the petition for liquidation is dismissed or

withdrawn
o
to answer for damages if the debtor shall not be declared insolvent

o
o Section 106. Order to Individual Debtor to Show Cause. - Upon the filing of such
creditors' petition, the court shall issue an Order requiring the individual debtor to show
cause, at a time and place to be fixed by the said court, why he should not be
adjudged an insolvent. Upon good cause shown, the court may issue an Order
forbidding the individual debtor from making payments of any of his debts,
and transferring any property belonging to him. However, nothing contained
herein shall affect or impair the rights of a secured creditor to enforce his lien in
accordance with its terms.
o
o
Order of the Court in involuntary liquidation of individual debtor:
1.) Directing the debtor to show cause why he should not be adjudged insolvent, such as
claims of defenses of legal compensation or condonation.
2.) Prohibiting payments of other obligations/debts.
3.) Prohibiting transfers of properties.
o
o Section 107. Default. - If the individual debtor shall default or if, after trial, the issues
are found in favor of the petitioning creditors the court shall issue the Liquidation
Order mentioned in Section 112 hereof.
o
o
If the debtor fails to answer because he cannot pay a lawyer so he was not able to file an
answer, then the court will issue a LIQUIDATION ORDER.
o
o
It will also issue an order APPOINTING A LIQUIDATOR.
o
o LIQUIDATOR will submit within 3 months after appointment a LIQUIDATION PLAN.
o
o
o
o
o
o
For individual debtors, the court will appoint the liquidator unlike in a juridical entity,
where there is a submission of nominees of the liquidator. Who has the right to vote for
the liquidator in juridical entities?
(a) petitioning creditor & (b) other creditors who filed their claims, may vote for the
liquidator, by majority. (Sec. 115)
Section 115. Election of Liquidator. - Only creditors who have filed their claims
within the period set by the court, and whose claims are not barred by the
statute of limitations, will be allowed to vote in the election of the liquidator. A
secured creditor will not be allowed to vote, unless: (a) he waives his security or lien; or
(b) has the value of the property subject of his security or lien fixed by agreement with
the liquidator, and is admitted for the balance of his claim.
The creditors entitled to vote will elect the liquidator in open court. The nominee
receiving the highest number of votes cast in terms of amount of claims, ad who is
qualified pursuant to Section 118 hereof, shall be appointed as the liquidator.
o
o NOTE: NO MENTION OF REHABILITATION OF INDIVIDUAL DEBTOR IN THE FRIA
o
o SECURED CREDITORS
o
may be a (a) MORTGAGEE or (b) PLEDGEE
a liquidation order will NOT AFFECT a secured creditor
o
Section 114. Rights of Secured Creditors. - The Liquidation Order shall not affect the right of a secured
creditor to enforce his lien in accordance with the applicable contract or law. A secured creditor may:
o
(a) waive his right under the security or lien, prove his claim in the liquidation proceedings and share in the
distribution of the assets of the debtor; or
o
(b) maintain his rights under the security or lien:
o
If the secured creditor maintains his rights under the security or lien:
o
(1) the value of the property may be fixed in a manner agreed upon by the creditor and the
liquidator.
o
(a) When the value of the property is less than the claim it secures, the liquidator may convey the
property to the secured creditor and the latter will be admitted in the liquidation proceedings as a creditor
for the balance.
o
(b) If its value exceeds the claim secured, the liquidator may convey the property to the creditor
and waive the debtor's right of redemption upon receiving the excess from the creditor;
o
(2) the liquidator may sell the property and satisfy the secured creditor's entire claim from the
proceeds of the sale; or
o
(3) the secure creditor may enforce the lien or foreclose on the property pursuant to applicable laws.
o
o
SEC. 114 EXPLAINED:

o IF DEBTOR IS INSOLVENT + LIQUIDATION ORDER + LIQUIDATION PLAN
o
WHAT IS THE RIGHT OF THE MORTGAGEE?
o
1.) WAIVE his lien over the real property and file his claim to the liquidator like an
ORDINARY CLAIM.
o Full amount of the principal obligation secured by a mortgage filed as an ordinary claim.
o
2.) MAINTAIN his right under the mortgage.
o The secured creditor can agree with the liquidator as to the valuation of the property.
o
o VALUE OF THE PROPERTY <
o VALUE OF THE PROPERTY > CREDIT
CREDIT
o - Liquidator will deliver the property to
o - Liquidator will deliver the
the creditor.
property to the creditor.
o - Creditor will pay the liquidator the
o - Deficiency will be treated as
excess. Liquidator will receive the
an ordinary claim.
excess & waive the right of redemption
of the debtor.
o
3.) LIQUIDATOR can sell the property mortgaged and PAY the secured creditor the entire
amount.
4.) FORECLOSE the mortgage or enforce the lien.
o
o Q: How will the liquidator DISTRIBUTE THE PROPERTIES?

A:
The assets of the insolvent debtor will be distributed in accordance with the
preference and concurrence of credits set forth in the Civil Code.
o
o
o
o
o
o
CONCURRENCE, PREFERENCE & ORDER OF CREDITS
o
o
o
o
o
o
o
o
o
o
o
o
o
o
Library of Laws
Art. 2236. The debtor is liable with all his property, present and future, for the fulfillment of his obligations,
subject to the exemptions provided by law.
Art. 2237. Insolvency shall be governed by special laws insofar as they are not inconsistent with this Code.
Art. 2238. So long as the conjugal partnership or absolute community subsists, its property shall not be
among the assets to be taken possession of by the assignee for the payment of the insolvent debtor's
obligations, except insofar as the latter have redounded to the benefit of the family. If it is the husband who is
insolvent, the administration of the conjugal partnership of absolute community may, by order of the court, be
transferred to the wife or to a third person other than the assignee.
Art. 2239. If there is property, other than that mentioned in the preceding article, owned by two or more
persons, one of whom is the insolvent debtor, his undivided share or interest therein shall be among the assets
to be taken possession of by the assignee for the payment of the insolvent debtor's obligations.
Art. 2240. Property held by the insolvent debtor as a trustee of an express or implied trust, shall be excluded
from the insolvency proceedings.
Art. 2241. With reference to specific movable property of the debtor, the following claims or liens shall be
preferred:
o
o
SPECIFIC PERSONAL PROPERTY
o
o
(1) Duties, taxes and fees due thereon to the State or any subdivision thereof;
o
(2) Claims arising from misappropriation, breach of trust, or malfeasance by public officials committed in the
performance of their duties, on the movables, money or securities obtained by them;
o
(3) Claims for the unpaid price of movables sold, on said movables, so long as they are in the possession of the
debtor, up to the value of the same; and if the movable has been resold by the debtor and the price is still unpaid, the lien
may be enforced on the price; this right is not lost by the immobilization of the thing by destination, provided it has not lost
its form, substance and identity; neither is the right lost by the sale of the thing together with other property for a lump sum,
when the price thereof can be determined proportionally;
o
(4) Credits guaranteed with a pledge so long as the things pledged are in the hands of the creditor, or those
guaranteed by a chattel mortgage, upon the things pledged or mortgaged, up to the value thereof;
o
(5) Credits for the making, repair, safekeeping or preservation of personal property, on the movable thus made,
repaired, kept or possessed;
o
(6) Claims for laborers' wages, on the goods manufactured or the work done;
o
(7) For expenses of salvage, upon the goods salvaged;
o
(8) Credits between the landlord and the tenant, arising from the contract of tenancy on shares, on the share of
each in the fruits or harvest;
o
(9) Credits for transportation, upon the goods carried, for the price of the contract and incidental expenses, until
their delivery and for thirty days thereafter;
o
(10) Credits for lodging and supplies usually furnished to travellers by hotel keepers, on the movables belonging to
the guest as long as such movables are in the hotel, but not for money loaned to the guests;
o
(11) Credits for seeds and expenses for cultivation and harvest advanced to the debtor, upon the fruits harvested;
o
(12) Credits for rent for one year, upon the personal property of the lessee existing on the immovable leased and on
the fruits of the same, but not on money or instruments of credit;
o
(13) Claims in favor of the depositor if the depositary has wrongfully sold the thing deposited, upon the price of the
sale.
o
In the foregoing cases, if the movables to which the lien or preference attaches have been wrongfully taken, the
creditor may demand them from any possessor, within thirty days from the unlawful seizure.
o
o
o
Art. 2242. With reference to specific immovable property and real rights of the debtor, the following claims,
mortgages and liens shall be preferred, and shall constitute an encumbrance on the immovable or real right:
o
o
SPECIFIC REAL PROPERTY
o
o
(1) Taxes due upon the land or building;
o
(2) For the unpaid price of real property sold, upon the immovable sold;
o
(3) Claims of laborers, masons, mechanics and other workmen, as well as of architects, engineers and contractors,
engaged in the construction, reconstruction or repair of buildings, canals or other works, upon said buildings, canals or other
works;
o
(4) Claims of furnishers of materials used in the construction, reconstruction, or repair of buildings, canals or other
works, upon said buildings, canals or other works;
o
(5) Mortgage credits recorded in the Registry of Property, upon the real estate mortgaged;
o
(6) Expenses for the preservation or improvement of real property when the law authorizes reimbursement, upon
the immovable preserved or improved;
o
(7) Credits annotated in the Registry of Property, in virtue of a judicial order, by attachments or executions, upon
the property affected, and only as to later credits;
o
(8) Claims of co-heirs for warranty in the partition of an immovable among them, upon the real property thus
divided;
o
(9) Claims of donors or real property for pecuniary charges or other conditions imposed upon the donee, upon the
immovable donated;
o
(10) Credits of insurers, upon the property insured, for the insurance premium for two years.
o
o
Art. 2243. The claims or credits enumerated in the two preceding articles shall be considered as mortgages or
pledges of real or personal property, or liens within the purview of legal provisions governing insolvency. Taxes
mentioned in No. 1, Article 2241, and No. 1, Article 2242, shall first be satisfied.
o
o
Art. 2244. With reference to other property, real and personal, of the debtor, the following claims or credits
shall be preferred in the order named:
o
o
FREE PROPERTY
o
o
(1) Proper funeral expenses for the debtor, or children under his or her parental authority who have no property of
their own, when approved by the court;
o
(2) Credits for services rendered the insolvent by employees, laborers, or household helpers for one year preceding
the commencement of the proceedings in insolvency;
o
(3) Expenses during the last illness of the debtor or of his or her spouse and children under his or her parental
authority, if they have no property of their own;
o
(4) Compensation due the laborers or their dependents under laws providing for indemnity for damages in cases of
labor accident, or illness resulting from the nature of the employment;
o
(5) Credits and advancements made to the debtor for support of himself or herself, and family, during the last year
preceding the insolvency;
o
(6) Support during the insolvency proceedings, and for three months thereafter;
o
(7) Fines and civil indemnification arising from a criminal offense;
o
(8) Legal expenses, and expenses incurred in the administration of the insolvent's estate for the common interest of
the creditors, when properly authorized and approved by the court;
o
(9) Taxes and assessments due the national government, other than those mentioned in Articles 2241, No. 1, and
2242, No. 1;
o
(10) Taxes and assessments due any province, other than those referred to in Articles 2241, No. 1, and 2242, No. 1;
o
(11) Taxes and assessments due any city or municipality, other than those indicated in Articles 2241, No. 1, and
2242, No. 1;
o
(12) Damages for death or personal injuries caused by a quasi-delict;
o
(13) Gifts due to public and private institutions of charity or beneficence;
o
(14) Credits which, without special privilege, appear in (a) a public instrument; or (b) in a final judgment, if they
have been the subject of litigation. These credits shall have preference among themselves in the order of priority of the
dates of the instruments and of the judgments, respectively.
o
o
Art. 2245. Credits of any other kind or class, or by any other right or title not comprised in the four preceding
articles, shall enjoy no preference.
o
o
Art. 2246. Those credits which enjoy preference with respect to specific movables, exclude all others to the
extent of the value of the personal property to which the preference refers.
o
o
Art. 2247. If there are two or more credits with respect to the same specific movable property, they shall be
satisfied pro rata, after the payment of duties, taxes and fees due the State or any subdivision thereof.
o
o
Art. 2248. Those credits which enjoy preference in relation to specific real property or real rights, exclude all
others to the extent of the value of the immovable or real right to which the preference refers.
o
o
Art. 2249. If there are two or more credits with respect to the same specific real property or real rights, they
shall be satisfied pro rata, after the payment of the taxes and assessments upon the immovable property or
real right.
o
o
Art. 2250. The excess, if any, after the payment of the credits which enjoy preference with respect to specific
property, real or personal, shall be added to the free property which the debtor may have, for the payment of
the other credits.
o
o
Art. 2251. Those credits which do not enjoy any preference with respect to specific property, and those which
enjoy preference, as to the amount not paid, shall be satisfied according to the following rules:
o
(1) In the order established in Article 2244;
o
(2) Common credits referred to in Article 2245 shall be paid pro rata regardless of dates.
o
o
4 ORDERS OF PREFERENCE
o
1.) Absolutely Preferred
No. 1 of Art. 2241 & Art. 2242
o
A. Specific Personal Property:
o
Art. 2241: (1) Duties, taxes and fees due thereon to the State or any subdivision
thereof;
o
B. Specific Real Property
o
Art. 2242: (1) Taxes due upon the land or building;
o
2.) Specially Preferred
Art. 2241 & Art. 2242
o
Art. 2241 for Specific Personal
Property
(2) misappropriation, breach of trust, or
malfeasance
(3) unpaid price of movables sold
(4) credits guaranteed with a pledge or
chattel mortgage
(5) credits for the making, repair,
safekeeping
(6) laborers' wages
(7) expenses of salvage
(8) credits between the landlord and the
tenant
(9) credits for transportation
(10) credits for lodging and supplies
(11) credits for seeds, cultivation and
harvest
(12) credits for rent for one year
(13) claims in favor of the depositor for
wrongful sale
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
Art. 2242 for Specific Real Property
(2) unpaid price of real property sold

(3) claims of laborers
(4) claims of furnishers of materials in
construction
(5) mortgage credits recorded
(6) expenses for the preservation
(7) credits annotated in the Registry of
Property
(8) claims of co-heirs for warranty in the
partition
(9) claims of donors
(10) credits of insurers
o
o
They are preferred creditors with respect to the property but among themselves, THEY
CONCUR.
o
Sharing will be PRO RATA.
o
3.) Ordinary Preferred
Art. 2244
MAHARLIKA
o
o
(1) Proper funeral expenses
o
(2) Credits for services rendered by employees, laborers, or household helpers
o
(3) Expenses during the last illness of the debtor
o
(4) Compensation due the laborers
o
(5) Credits and advancements made to the debtor for support of himself
o
(6) Support during the insolvency proceedings
o
(7) Fines and civil indemnification arising from a criminal offense
o
(8) Legal expenses
o
(9) Taxes and assessments due the national government
o
(10) Taxes and assessments due any province
o
(11) Taxes and assessments due any city or municipality
o
(12) Damages for death or personal injuries caused by a quasi-delict
o
(13) Gifts due to public and private institutions of charity or beneficence
o
have been the subject of litigation.
o
4.) Common Credits
o
o
COMMON TAO
For example, there are several creditors which have liens or claims over specific
properties over the INSOLVENT debtor.
Remember that order and preference of credits is only applicable when debtor is
INSOLVENT (liabilities > assets)
o
o CONCURRENCE VS. PREFERENCE
o
A. Concurrence: A car with several creditors which has legal pledges or liens or claims over the
property.
o
Car is imported from Japan which required the payment of customs duties.
The purchase price was not yet fully paid.
The car was repaired due to damages.
The owner of the car may have contracted a loan & subjected the car to a recorded chattel
mortgage.
o
These are all PREFERRED CREDIT with respect to the car.
But there is one ABSOLUTE PREFERRED CREDIT CUSTOMS DUTIES (not taxes)
o
B. Preference: When the asset is disposed, preference refers to the application of the proceeds.
o
Preference is not a lien or charge on the property. It refers to the order of
payment once property is sold.
o
o SAMPLE CASE:
o
o
o
o
o
o
o
A.
Specific
Persona
l
Propert
y
Custom
s Duties
o
Php
100,000
o
Php
50,000
o
(10,000)
(10,000)
o
Chattel
Mortga
ge
(registe
red)
Mechan
ics
Lien
Balance
40,000
(50,000)
(28,571)
(20,000)
(11,429)
20,000
ABSOLU
TE
PREFERR
ED
o
o
=
(50/70)
X 40,000
o
=
(20/70)
X 40,000
o
In the first instance, there is no problem as the proceeds of the asset is more than
enough to pay the claims/credits.
Those creditors that concur cannot recover the entire amount of the obligation but only
share pro rata/ in proportion.
o
Mortgage and Mechanics Lien concur pro rata.
o
o The BALANCE, if any, (referring to 20,000) goes to the FREE PROPERTY.
o
o
B.
Specific
Real
Propert
y
Real
Propert
y Taxes
o
Php
5,000,0
00
o
o
o
(180,000
)
o
Insuran
ce
Premiu
ms
Unpaid
Price
Balance
(120,000
)
(2,100,0
00)
2,600,00
0
o
Php
2,000,0
00
o
o
(90,000)
1,910,00
0
(102,703
)
(1,797,2
97)
o
ABSOLU
TE
PREFERR
ED
o
o
=
(120/2,2
20) X
1,900,00
0
o
=
(2,100/2,
220) X
1,900,00
0
o
o
o
In the first instance, there is no problem as the proceeds of the asset is more than
enough to pay the claims/credits.
Those creditors that concur cannot recover the entire amount of the obligation but only
share pro rata/ in proportion.
o
Insurer for the premiums and the Vendor for the unpaid price concur pro rata.
o
o
o
o
o
C. Free Property
The FREE PROPERTY is subject to Art. 2244, following that exact sequential order.
The excess of the proceeds of the specific real & personal property and other properties
not so charged become part of common credit which shall be paid last.
o
o According to Sec. 133 of FRIA,
o
wages must be paid first under Art. 2244 if the wages are not preferred under Art. 2241 &
Art. 2242
o
PROPER ORDER:
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
(0) Wages of Laborers (synchronizing Art. 2244 NCC and Sec. 133 FRIA)
(1) Proper funeral expenses
(2) Credits for services rendered by employees, laborers, or household helpers
(3) Expenses during the last illness of the debtor
(4) Compensation due the laborers
(5) Credits and advancements made to the debtor for support of himself
(6) Support during the insolvency proceedings
(7) Fines and civil indemnification arising from a criminal offense
(8) Legal expenses
(9) Taxes and assessments due the national government
(10) Taxes and assessments due any province
(11) Taxes and assessments due any city or municipality
These taxes are not customs duties nor realty taxes but could refer to:
o
o
Business Taxes
o
Capital Gains Tax (CGT)
o
Documentary Stamp Tax (DST)
MORTGAGE IN PUBLIC INSTRUMENT W/C IS NOT REGISTERED LAST PRIORITY
have been the subject of litigation. These credits shall have preference among themselves in the order of
priority of the dates of the instruments and of the judgments, respectively.
TWO INSTANCES:
(a) embodied in a public instrument but not recorded
(b) embodied in a final judgment
Hence, the unregistered mortgagee still joins in the MAHARLIKA (3rd Order) not on the
COMMON TAO (4th Order).

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1

CREDIT TRANSACTIONS FINALS

CHAPTER 3: REAL ESTATE MORTGAGE

NO DELIVERY or TRANSFER OF POSSESSION required

To bind third persons, it must be embodied in a public document + recorded in the

Mobil Oil Phils. vs. Diocares

Implication of CUYCO Case: A mortgage, to be valid between parties, must be in a PUBLIC

Enforceable Against 3rd

You cannot reform the contract because the contract is a Mortgage.

A REAL RIGHT is created by virtue of the mortgage.

Ganzon vs. Insierto

Vda. De Jacob vs. CA

3 ALTERNATIVE REMEDIES if the Mortgagor Dies:

Mortgagee is a preferred creditor with regard to the mortgaged property.

Mortgage extends to accessions & accessories or improvements of the real property.

Spouses Paderes vs. CA

A. What if another party, not the mortgagor, introduces the improvements?

The provisions on Builder-in-Good-Faith will apply.

In effect, he must BUILD ON HIS OWN RISK!

No, it is a void stipulation being contrary to public policy.

Mortgagor remains to be the owner. He is not divested of his ownership by merely

PACTUM DE NON ALIENANDO stipulation prohibiting the alienation of the property is

The fruits may be applied to the payment of interest. (antichresis)

E. Rights of the 2nd Mortgagee

His right is SUBORDINATE to the 1st mortgagee.

Remedy: In order to foreclose the mortgage, he has to redeem the property.

A. JUDICIAL FORECLOSURE under Rule 68 of the Rules of Court

A.M. No. 99-10-05-0

PROCEDURE IN EXTRA-JUDICIAL FORECLOSURE OF MORTGAGE

IMPORTANT POINTS ON EJ FORECLOSURE

Otherwise, the proper recourse is made on JUDICIAL FORECLOSURE.

In a judicial foreclosure, you need to file a petition in court (litigated action)

It is not a litigated action, in that, there will be no trial conducted.

Conditions of the Foreclosure of Mortgage:

PROCEDURAL STEPS IN EJ FORECLOSURE

Pay the filing fee.

Sheriffs Office @ the Office of the Clerk of Court of the RTC

City Assessors Office in the place where the property is located

What is stated in the notice:

correct description of the property

correct TCT No.

Mortgagor NEED NOT BE NOTIFIED, unless provided in the mortgage contract.

Public sale conducted in

Who conducts the sale:

GEN: the province where property is located

Justice of Peace or Auxiliary Justice of Peace (MTC Judge)

There is NO REQUIREMENT to schedule another foreclosure sale if there is only 1 BIDDER.

Period of Redemption: 1 year from registration of the Certificate of Sale

Petition to Cancel Sale

ACTIONS DURING THE INTERREGNUM

Petition to Cancel Sale

not a litigated petition in EJ Foreclosure & is issued as a matter of course in RTC

B. Petition to Cancel Sale

not the same as Annulment of Judgment, as there is no judgment; what is conducted is EJ

SIDEBAR: RECTO LAW - Article 1484 of the Civil Code

Under Article 1484 of the New Civil Code, in a contract

Until but Not Later

Juridical Persons (not > 90 d)

[Huerta Alba Resort vs. CA]:

Right of Redemption vs. Equity of

Within 1 year from the registration of the certificate of sale

In accordance with Rule 68 of the Rules of Court on Judicial Foreclosure of Mortgage

For extrajudicial foreclosure, there are basically SIMILAR RULES.

Until but Not Later