HERNANDEZ VS RURAL BANK OF LUCENA, INC. G.R. No.

L-29791 1978 Jan 10 (81 SCRA 75) FACTS: Spouses Hernandez obtained from the Rural Bank of Lucena, Inc. a loan of P6,000, payable in a year. The loan was secured by a mortgage on their two lots situated in Cubao, Quezon City. About three months after that loan was obtained, the Lucena bank became a distressed bank. It then received directives from the Central Bank which it construed as a directive to suspend operations. Before the expiration of the one year term of the loan, Hernandez offered to pay the loan by means of a check which was drawn against the bank by a depositor, the San Pablo Colleges, and which was payable to Hernandez. The payment was never consummated. Despite several attempts, Hernandezs check was refused, Lucena bank being no longer in a position to honor withdrawals. In the meantime, the Monetary Board had decided to liquidate the Lucena bank. A petition was filed with CFI of Manila for assistance and supervision in the liquidation of the Lucena bank. Hernandez made a judicial deposit of the check with the CFI of Lipa City. He then filed with the same court an action to compel the Rural Bank and Central Bank as liquidator to accept the check and to execute the cancellation of the real estate mortgage. ISSUE: WoN the venue was properly laid.

HELD: An action to foreclose a real estate mortgage is a real action, but an action to compel the mortgagee to accept payment of the mortgage debt and to release the mortgage is a personal action. Section 2(a), Rule 4 of the Rules of Court provides that "actions affecting title to, or for recovery of possession, or for partition or condemnation of, or foreclosure of mortgage on, real property, shall be commenced and tried in the province where the property or any part thereof lies" The rule mentions an action for foreclosure of a real estate mortgage but does not mention an action for the cancellation of a real mortgage. In the instant case, the action is primarily to compel the mortgagee to accept payment of the mortgage debt and to release the mortgage. Hence, the venue of plaintiffs' personal action is the place where the defendant or any of the defendants resides or may be found, or where the plaintiff or any of the plaintiffs resides, at the election of the plaintiff (Sec. 2[b], Rule 4). The term "resides" in section 2[b] of Rule 4 refers to the place of actual residence or the place of abode and not necessarily to the legal residence or domicile San Juan, Batangas might be the place where the plaintiffs have their domicile or legal residence but there is no question that Chicago St., Cubao, Quezon City is their place of abode or the place where they actually reside. So, the action in this case, which is a personal action to compel the defendants to honor the check in question and to cancel the mortgage, should have been filed in Quezon City if the plaintiffs intended to use their residence as the basis for their choice of venue.