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BPI v. CA
490 SCRA 168
Azcuna, J.

DOCTRINE OF THE CASE: When the co-signors expressly waived demand in the
promissory notes, demand was unnecessary for them to be in default.

FACTS: This is a petition for review on certiorari filed by Bank of the Philippine Islands
of the decision and resolution of the Court of Appeals which in turn partially denied a
petition for certiorari questioning the temporary restraining order (TRO) and preliminary
injunction issued by Judge Urbano C. Victorio, Sr. In this case, petitioner BPI, former
Far East Bank and Trust Company, granted a total of eight loans to Noah’s Arc
Merchandising. Noah’s Ark is a single proprietorship owned by Mr. Albert T. Looyuko.
The said loans were evidenced by identical promissory notes all signed by Mr. Looyuko,
private respondent Jimmy T. Go and one Wilson Go. Likewise, all loans were secured
by real estate mortgage constituted over a parcel of land registered in the names of Mr.
Looyuko and herein private respondent, Go. Petitioner, claiming that Noah’s Ark
defaulted in its obligations, extra-judicially foreclosed the mortgage. The auction sale
was set however prior, private respondent Go filed a complaint for damages with prayer
for issuance of TRO and/or writ of preliminary injunction seeking to enjoin the auction
sale which was granted. Petitioner averred that private respondent had not shown any
right which should be protected by an injunction. On the other hand, private respondent
claimed that demand was not made upon him, in spite of the fact that he co-signed the
promissory notes. He also argues that only four of the eight promissory notes secured
by the mortgage had become due.

ISSUES: Whether or not the private respondent was entitled to the TRO and writ of
preliminary injunction.

RULING: No. The Civil Code in Article 11698 provides that one incurs in delay or is in
default from the time the obligor demands the fulfillment of the obligation from the
obligee. However, the law expressly provides that demand is not necessary under
certain circumstances, and one of these circumstances is when the parties expressly
waive demand. Hence, since the co-signors expressly waived demand in the
promissory notes, demand was unnecessary for them to be in default. In the case at
bar, a reading of the promissory notes discloses that as co-signor, private respondent
waived demand.