EXTRAJUDICIAL FORECLOSURE OF REAL ESTATE MORTGAGE

GOVERNING LAW
Act 3135, as amended by Act No. 4118 and Sec. 47, R.A. 8791 (General
Banking Law of 2000) governs sales made under a special power inserted
in or attached to any real estate mortgage made as security for the
payment of money or the fulfillment of any other obligation.
FORECLOSURE SALE
TYPE OF SALE: Public auction
VENUE OF SALE: Province where the property is situated
If venue is subject to stipulation, such sale shall be made in said place
(i.e., the place so stipulated) or in the municipal building of the
municipality in which the property or part thereof is situated.
NOTICE: Notices of the sale are to be posted in at least 3 public places of
the municipality or city where the property is situated for not less than
20 days. Such notice shall likewise be published once a week for at least
3 consecutive weeks in a newspaper of general circulation in the
municipality or city.
TIME OF SALE: Between 9 AM and 4 PM
WHO MAY BID: The creditor;
The trustee;
Other persons authorized to act for the creditor; Other bidders not privy
to the mortgage or trust deed
PROCEDURE:
1. The mortgagee files an application for foreclosure with the Executive
Judge through the Clerk of Court, who will receive and docket the
application and collect the appropriate filing fees. (SC Circular)
2. Notice of the sale is posted in at least 3 public places of the
municipality or city where the property is situated for not less than 20
days and published once a week for at least 3 consecutive weeks in a
newspaper of general circulation in the municipality or city. (Sec. 3, Act
3135)
3. The auction sale is conducted under the direction of the sheriff, the
Executive Judge, or a notary public of the municipality. (Sec. 4, Act
3135)
At the 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. 5, Act 3135)
There must be at least 2 participating bidders for the auction sale to be
valid. (SC Circular)
4. Once the sale has been confirmed, the Clerk of Court issues a
certificate of sale to the winning bidder.
5. After the date of the confirmation of the auction sale, the winning
bidder has the right to enter upon and take possession of such property
and administer the same in accordance with law. (Sec. 47, R.A. 8791)
Within 30 days after the purchaser is given possession of the property,
the debtor may petition that the sale be set aside on the ground that
the mortgage was not violated or the sale was not made in accordance
with the provisions of Act 3135. (Sec. 8, Act 3135)
6. Upon failure of the debtor to redeem the property within the period
allowed him by the law, absolute ownership over the purchased
property vests in the winning bidder.
POSSESSION
The purchaser at the auction sale has the right to enter upon and take
possession of the property immediately after the date of the
confirmation of the auction sale and administer the same in accordance
with law. (Sec. 47, R.A. 8791, amending Sec. 7 of Act 3135)
REDEMPTION
• WHO MAY REDEEM:
(1) The debtor;
(2) The debtor's successors-in-interest;
(3) Any judicial creditor or judgment creditor of the debtor;
(4) Any person having a lien on the property subsequent to the
mortgage or deed of trust under which the property is sold
PERIOD FOR REDEMPTION:
Natural persons: Within 1 year from and after the date of the sale (Sec. 6, Act
3135)
Juridical persons: 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 3 months after foreclosure, whichever is earlier. (Sec. 47, R.A.
8791)
EFFECT OF INADEQUACY OF PRICE
When there is a right to redeem, inadequacy of price is of no moment for the
reason that the judgment debtor always has the chance to redeem and
reacquire the property. In fact, the property may be sold for less than its fair
market value precisely because the lesser the price the easier for the owner
to effect a redemption. (Valmonte v. CA, 303 SCRA 278, citing DBP v. Moll, 43
SCRA 82)
EFFECT OF REQUEST FOR EXTENSION OF TIME ON RIGHT TO QUESTION
VALIDITY OF FORECLOSURE SALE
• The act of seeking an extension of the redemption period estops the
mortgagors from questioning the foreclosure sale thereafter.
(Valmonte v. CA, 303 SCRA 27
B. Real Estate Mortgage Law (Act 3135, as amended by R.A. 4118)
1. Coverage
2. Remedies available to mortgagee upon default of the mortgagor
3. Need for special power of attorney
4. Authority to foreclose extrajudicially

5. Procedure
• a) Where to file
• b) Where to sell
c) Posting requirement
• d) Publication requirement
(i) Sufficiency of newspaper publication
(ii) Need for republication in case of postponement
(iii) Personal notice to the mortgagor when and when not needed
6. Possession by purchaser of foreclosed property
7. Remedy of debtor if foreclosure is not proper
8. Redemption
a) Who may redeem
b) Amount of redemption price
c) Period for redemption
d) Effect of pendency of action for annulment of sale
9. Writ of possession
a) Ministerial duty of the court
b) Enforcement against third parties
c) Pendency of action for annulment of sale
10. Annulment of sale
The Chattel Mortgage Law (Act 15
The Chattel Mortgage Law (Act 1508 in rel. to Arts. 1484, 1485, 2140 and
2141 of the Civil Code)
Growing crops (Sec. 6, Act 150 ; \
House built on another person's land (Tumalad v. Vicencio, 41 SCRA 143;
1971)
Machinery permanently affixed to a building, under the doctrine of estoppel

Can future or after-acquired property be the subject of chattel mortgage?

• Yes, provided that the after-acquired property is either
(1) in renewal of, or in substitution for, goods on
• hand when the mortgage was executed, or
• (2) purchased with the proceeds of the sale of such goods
Can like or substituted property be deemed covered by a chattel
mortgage?
No. Sec. 7 of Act 1508 expressly provides that a chattel mortgage covers
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.
Note however that this provision does not apply to drug stores, bazaars
and all other stores in the nature of a revolving and floating business,
i.e. one that deals with the sale of either perishable goods, "rolling"
goods, or goods subject to wear and tear
Can a chattel mortgage cover after-incurred obligations or debts
subsequently contracted?
No. A chattel mortgage can only cover obligations existing at the time
the mortgage is constituted.
Personal or movable property
1. Shares of stock;
2. Interest in business;
3. Machinery treated as personal property subsequently installed on leased land (Davao
• Sawmill v. Castillo, 61 Phil. 709).
4. Vessels recorded in the office of the Philippine Coast Guard to be effective as to third
persons; not necessary to be recorded in the Office of the Register of Deeds;
5. Motor Vehicles mortgage registered in the LTO (for vehicles used for public services)
6. House of Mixed Materials;
7. House intended to be demolished;
8. House built on rented land.
GR: Immovable property.
E: treated as movable by estoppel of parties.
9. House of strong materials is personal property for purposes of executing a chattel
mortgage as between the parties to the contract if parties so agree and no innocent third
party will be prejudiced.
General Rule: chattel mortgages cannot cover debts subsequently contracted.
REGISTRATION
1. Chattel mortgages must be registered in place where mortgagor resides and where
property (chattel) is located. If mortgagor resides abroad, it must be registered in place
where property is located.
2. With respect to growing fruits, they may be secured by a chattel mortgage but they may
not be pledged.
3. With respect to machineries placed on plant or building owned by another, they can be
the object of chattel mortgage.
4. With respect to shares of stock: place of domicile of corporation and shareholder. No
need for notation in books of corporation.
Essential Requistes
1.It must be constituted to secure the fulfillment of principal obligation.
(Art. 2085, NCC)
2. The mortgagor must be the absolute owner of the thing mortgaged.
(Art. 2085, NCC)
3. The persons constituting the mortgage have the free disposal of the
property and in the absence thereof, they be legally authorized for the
purpose. (Art. 2085, NCC)
4. Must be recorded in the Chattel Mortgage Register in order to bind
third persons.
The first three requirements pertain to the requirements of any valid
mortgage under the Civil Code
Formal requisites
• Requirements under the chattel mortgage law for the validity of a chattel
mortgage

1. Substantial compliance with the form prescribed in Sec. 5 of Act No. 1508;
2. The chattel mortgage must be signed in the presence of at least 2
witnesses;
3. Affidavit of good faith;The affidavit of good faith states that:
"We (the parties) 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." (Sec. 5)
4. Certificate of oath / Notarial acknowledgment;
5. Sufficiency of description
Requisites to bind 3rd Person

1. It must be recorded in the Chattel Mortgage

Registry

2. Must contain affidavit of good faith

Contents required in the Affidavit of Good Faith
1. Where the parties severally swear that the mortgage is made for the
purpose of securing the obligation specified and for no other purpose
and that the same is a just and valid obligation and not one entered into
for fraud; and,
2. Property given in chattel mortgage must be described to enable the
parties or any other
person after reasonable inquiry and investigation to identify it.
3. Registration, when and where
4. After-acquired property
5. After-incurred obligation
6. Right of junior mortgagee
7. Foreclosure procedure
8. Redemption
There is no right of redemption in Chattel Mortgage. There is only an
equity of redemption.
The following may redeem if the condition of the mortgage is broken: 1.
mortgagor
2. a person holding subsequent mortgage
3. a subsequent attaching creditor (sec. 13, Act 1508)
Claim for deficiency
a) General rule
b) Exception
c) Article 1484
RULE ON RECOVERY OF DEFICIENCY AFTER FORECLOSURE
There is recovery of deficiency in all mortgages(chattel or real).
There is no right of redemption in Chattel Mortgage. There is only an
equity of redemption.
The following may redeem if the condition of the mortgage is broken:
1. mortgagor
2. a person holding subsequent mortgage
3. a subsequent attaching creditor (sec. 13, Act 1508)
Reason: Mortgages as accessory contracts serve only as securities and
not for the satisfaction of the
principal obligation.
Prescriptive Period: 10 years, under Article 1142, NCC (DBP v. Tomelda,
101 SCRA 171).
Exception: When the transaction secured is sale of personal property on
installment basis under Article 1484 of the New Civil Code otherwise known as
Recto Law.
Acts, which provide for criminal liability under the Chattel Mortgage Law: (Art.
319, RPC)
1. Removal of chattel to another city or province without written consent of
mortgagee,
2. Selling property already pledged, or mortgaged without written consent of
mortgagee.
DEFAULT AND FORECLOSURE
Does the default of the mortgagor have the effect of vesting ownership of the
mortgaged property on the mortgagee? In other words, could he appropriate
the property to himself?
No. He is only permitted to recover his credit from the proceeds of the sale of
the property at public auction through a public officer in the manner
prescribed in Sec. 14 of Act No. 1508. Pactum commissorium is prohibited.
JUNIOR MORTGAGEES
• Can personal property already mortgaged be mortgaged again? In such a
case, what is the right of the subsequent or junior mortgagees?
• Yes. In such a case, junior mortgagees have the right of redemption within
the period of redemption allowed by law, for as long as the mortgagor has
not yet exercised his right of redemption.

• What is the procedure for foreclosure of chattel mortgages?

• 1. 30 days after the condition of the chattel mortgage is broken, the
mortgagee (or his executor, administrator or assign) may cause the
mortgaged property (or any part thereof) to be sold at public auction.
2. At least 10 days before the sale, the mortgagor and all junior mortgagors
must be informed in writing of the time, place and purpose of the sale. The
notice of sale must likewise be posted in at least 2 public places in the
municipality where the mortgagor resides or where the property is situated.
• Who may bid in the foreclosure sale?
• At the public auction, the mortgagor or owner may bid. He shall,
moreover, have a better right if he should offer the same terms as the
highest bidder. (This implies the right to match.) The mortgagee may
also bid, but his offer shall not be valid if he is the only bidder. (Art.
2113, Civil Code)
DEFICIENCY
Can a chattel mortgagee sue for a deficiency following foreclosure?
As a general rule, yes, a chattel mortgagee can sue for a deficiency
judgment following foreclosure.
However, if the property was sold in installments, the mortgagee can no
longer take any action against the purchaser to recover any unpaid
balance of the price. Any agreement to the contrary is void. (Art. 1484,
Civil Code)
The Recto law, which is now reflected in Articles 1484-1485 of the Civil Code,
which provides that in a contract of sale of personal property, the price of
which is payable in installments, the vendor may exercise any of the following
remedies:
a. Exact fulfillment of the obligation, should the vendee fail to pay (specific
performance);
b. Cancel the sale, should the vendee's failure to pay cover two or more
installments (Note that this is not the same as rescission because here, the
vendor gets back the object of the sale and retains the installments paid.
However, this is not available in the absence of stipulation in the contract.);
c. Foreclose the chattel mortgage on the thing sold, if one has been
constituted, should the vendee's failure to pay cover 2 or more installments.
In this case, he shall have no further action against the purchaser to recover
any unpaid balance of the price. Any agreement to the contract is void.
(The principal object of this amendment was to remedy the abuses committed
in connection with the foreclosure of chattel mortgages. This amendment
prevents mortgagees from seizing the mortgaged property, buying it at
foreclosure sale for a low price, and then bringing the suit against the
mortgagor for a deficiency judgment. The almost invariable result of this
procedure was that the mortgagor found himself minus the property and still
owing practically the full amount of his original indebtedness.)
These remedies are alternative; not cumulative. (Pacific Commercial Co. v.
Dela Rama, 72 Phil. 380)
SPECIFIC PERFORMANCE
• In sales on installments, where the action instituted is for specific
performance and the mortgaged property is subsequently attached and
sold, the sale thereof does not amount to a foreclosure of the mortgage.
Hence, seller is entitled to a deficiency judgment. (Southern Motors v.
Moscoso, 2 SCRA 168; 1961)
• REDEMPTION
• What are the rules on redemption of property subject to chattel
mortgage?
• Since the Chattel Mortgage Law does not contain provisions similar to
Sec. 6 & 7 of Act No. 3135 governing extra-judicial foreclosure of real
estate mortgage, the provisions of Rule 39 of the Rules of Court on
redemption in case of execution sales will apply. (IFC Service Leasing v.
Nera, 19 SCRA 181)