Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
MORTGAGE UNDER ACT NO. 3135 AND CHATTEL MORTGAGE UNDER ACT
NO. 1508 (A.M. N0. 99-10-05-0; January 15, 2000) (ARC-DINREA)
Filing of application before the Executive Judge through the Clerk of Court,
whether under the direction of the sheriff or a notary public.
1.
Clerk of Court will examine whether the requirement of the law have been
complied with, that is, whether the notice of sale has been posted for not less
than 20 days in at least 3 public places of the municipality or city where the
property is situated, and if the same is worth more than P400.00, that such
notice has been published once a week for at least 3 consecutive weeks in a
newspaper of general circulation in the city or municipality
2.
3.
the Clerk of Court shall issue certificate of payment indicating the amount of
indebtedness, the filing fees collected, the mortgages sought to be foreclosed,
the description of the real estates and their respective locations
5.
6.
7.
after the redemption period has expired, the Clerk of Court shall archive the
records
8.
no auction sale shall be held unless there are at least 2 participating bidders,
otherwise the sale shall be postponed to another date. If on the new date there
shall not be at least 2 bidders, the sale shall then proceed. The names of the
bidders shall be reported to the Sheriff of the Notary Public, who conducted the
sale to the Clerk of Court before the issuance of the certificate of sale.
9.
Property may be sold for less than its fair market value upon the theory that
the lesser the price the easier for the owner to redeem
2.
The value of the mortgaged property has no bearing on the bid price at the
public auction, provided that the public auction was regularly and honestly
conducted
3.
Note: If the judgment obligor redeems he must make the same payments as are
required to effect a redemption by a redemptioner, whereupon, no further
redemption shall be allowed and he is restored to his estate. The person to whom
the redemption payment is made must execute and deliver to him a certificate of
redemption acknowledged before a notary public or other officer authorized to take
acknowledgments of conveyances of real property. Such certificate must be filed
and recorded in the registry of deeds of the place in which the property is situated
and the registrar of deeds must note the record thereof on the margin of the record
of the certificate of sale. The payments mentioned in this and the last preceding
sections may be made to the purchaser or redemptioner, or for him to the officer
who made the sale. [Section 29, Rule 39 of ROC]
WAIVER OF SECURITY BY CREDITOR
Mortgagee may waive right to foreclose his mortgage and maintain a
personal action for recovery of the indebtedness. There is no statutory provision in
our jurisdiction prohibiting a personal action to recover a sum of money even
though a mortgage has been given as security for the payment of the same. (Hijos
de I. de la Rama vs. Sajo, 45 Phil. 703 [1924]; Solomon and Lachica vs. Dantes,
63 Phil. 522 [1937]).
1.
Mortgagee cannot have both remedies. He has only one cause of action, i. e.,
nonpayment of the mortgage debt; hence, he cannot split up his cause of action by
filing a complaint for payment of the debt and another complaint for foreclosure.
(Caltex Phils. Vs. Intermediate Appellate Court, 176 SRCA 741 [1989]).
2.
To rely on the mortgage exclusively, foreclosing the same at any time before
it is barred by prescription without right to file a claim for any deficiency
3.
NOTE: the right of redemption, as long as within the period prescribed, may
be exercised irrespective of whether or not the mortgagee has subsequently
conveyed the property to some other party (Sta. Ignacia Rural Bank,Inc
v. CA, 230 SCRA 513 [1994])
PERIOD OF REDEMPTION
1.
b.
2.
NOTE: Allowing redemption after the lapse of the statutory period when the
buyer at the foreclosure sale does not object but even consents to the
redemption, will uphold the policy of the law which is to aid rather than
defeat the right of redemption (Ramirez v. CA, 219 SCRA 598 [1993])
AMOUNT PAYABLE
Mortgagee is not a bank (Act No. 3135 in relation to Sec. 28, Rule 39 of
Rules of Court)
1.
1 MEDIDA v CA: The rule up to now is that the right of a purchaser at a foreclosure sale is merely inchoate until after the period of
redemption has expired without the right being exercised. The title to land sold under mortgage foreclosure remains, in the
mortgagor or his grantee until the expiration of the redemption period and conveyance by the master's deed.
2.
NOTE: Redemption price in this case is reduced by the income received from the
property
PERSONS ENTITLED TO EXERCISE RIGHT OF REDEMPTION
1.
2.
3.