BPI vs CONCEPCION

the creditor may demand of the third person in possession of the property mortgaged payment of such part of the debt, as is secured by the property in his possession, in the manner and form established by law.

As will be seen, the mortgagee has the election of one out of three courses in case of the death of the debtor

(1) He may abandon his security and share in the general distribution of the assets of the estate, or (2) he may foreclose, secure a deficiency judgment and prove his deficiency judgment before the committee, or (3) he may rely upon his security alone, in which case he can receive no share in the distribution of the assets of the estate.

CALTEX vs IACwhere a debt is secured by a mortgage and there is a default in payment on the part of the mortgagor, the mortgagee has a choice of one (1) of two (2) remedies, but he cannot have both. The mortgagee may: 1) foreclosure the mortgage; or 2) file an ordinary action to collect the debt.

DEFICIENCY JUDGMENT – one for the balance of the indebtedness after applying the proceeds of the sale

When the mortgagee chooses the foreclosure of the mortgage as a remedy, he enforces his lien by the sale on foreclosure of the mortgaged property. The proceeds of the sale will be applied to the satisfaction of the debt. With this remedy, he has a prior lien on the property. In case of a deficiency, the mortgagee has the right to claim for the deficiency resulting from the price obtained in the sale of the real property at public auction and the outstanding obligation at the time of the foreclosure proceedings (Soriano v. Enriquez, 24 Phil. 584; Banco de Islas Filipinas v. Concepcion Hijos, 53 Phil. 86; Banco Nacional v. Barreto, 53 Phil. 101).lâwphî1.ñèt

The collection suit filed before the trial court cannot be considered as a deficiency judgment because a deficiency judgment has been defined as one for the balance of the indebtedness after applying the proceeds of the sale of the mortgaged property to such indebtedness and is necessarily filed after the foreclosure proceedings. It is significant to note that the judgment rendered by the trial court was for the full amount of the indebtedness and the case was filed prior to the foreclosure proceedings. In general, a deficiency judgment is in the nature of an ordinary money judgment, may constitute a cause of action and is barred by the statute of limitations applicable to ordinary judgment (59 C.J.S. 1497). The ten (10) year period provided in Articles 1142 and 1144 of the Civil Code applies to a suit for

deficiency judgment, to wit: Art. 1142. A mortgage action prescribes after ten years. (1964a)Art. 1144. The following actions must be brought with ten years from the time the right of action accrues: (1) Upon a written contract; (2) Upon an obligation created by law; (3) Upon a judgment. (n) For non-payment of a note secured by mortgage, the creditor has a single cause of action against the debtor. This single cause of action consists in the recovery of the credit with execution of the security. In other words, the creditor in his action may make two demands, the payment of the debt and the foreclosure of his mortgage

DE CASTRO vs. IACAng maka redeem:debtor, successors in interest, judicial creditor of the debtor having a lien on the property mortgagedone who has interest in the property and a loser if forclosedone with deed of sale with assumption of mortgage

The sale of a mortgaged property at public auction by reason of an extrajudicial foreclosure of mortgage is governed by Act No. 3135, as amended by Act No. 4118. Under the cited law, a right of redemption is granted to the debtor, his successor-in-interest or any judicial 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, within a period of one (1) year from the date of the sale: and such redemption is governed by Sections 29, 30 and 31. Rule 39 of the Revised Rules of Court. 7 The matter of redemption is wholly statutory. Only such persons can redeem from an execution sale as are authorized to do so by statute. 8

In determining whether a person is included within the terms of a redemption statute, the principle is stated to be that, if one is in privity in title with the mortgagor, and he has such an interest that he would be a loser by the foreclosure, he may redeem. 9 Redemption is proper where made by debtors, grantee, or assignee for the benefit of creditors, or assignee or trustee in insolvency proceedings. 10 In Gorospe vs. Santos 11 the Court, citing Magno vs. Viola and Sotto, 12 said:

we held in Magno v. Viola that the successor-in-interest includes one to whom the debtor has transferred his statutory right of redemptionthe one with deed of sale with assumption of mortgage, may validly exercise the right of redemption as successors in interest

successors in interest:

successors in interest by operation of lawwhom the debtor has conveyed his interest in the property for the purpose of redemption;

one or more joint debtors who were joint owners of the property sold

actual notice by the contracting parties is equivalent to registration

here is no question, in our mind, that the right of redemption of petitioners exists and jurisprudence has established that transfer of said right from the original debtor-mortgagor need not be registered with the Register of Deeds to enable the transferee or assignee to exercise the same.

DULAY vs. CARRIAGAthe redemption of properties sold at an execution sale, the amount payable is no longer the judgment debt, but the purchase price

shall, within one year from the date of the auction sale, have the right to redeem the real property by paying to the Bank an the amount he owed the latter on the date of the sale, with interest on the total indebtedness at the rate agreed upon in the obligation from said date,

LIMPIN vs IAC

will an equity of redemption be recognized more than a year after the judgment has become final and executory? This is the mortgagor's equity (not right) of redemption which, as above stated, may be exercised by him even beyond the 90-day period "from the date of service of the order,' and even after the foreclosure sale itself, provided it be before the order of confirmation of the sale. 25 After such order of confirmation, no redemption can be effected any longer.

Equity of redemption can be exercised before the judicial sale is confirmed by the court

MA BAUTISTA de REYES vs. De LEON

Unrecorded Sale is superior to a subsequent registered mortgage

an unrecorded sale of a prior date and a recorded mortgage of a later date the former is preferred to the latter for the reason that if the original owner had parted with his ownership of the thing sold then he no longer had the ownership and free disposal of that thing so as to be able to mortgage it againRegistration of the mortgage under Act No. 3344 would, in such case, be of no moment since it is understood to be without prejudice to the better right of third partiesThe sale w/ the stipulation pacto de retro is actually an equitable mortgage. Since the mortgage to de

Leon was recorded first in the registry of properties then he has a better right than the previous transaction

PNB vs. CA

fraudulent or forged document of sale may become the ROOT of a valid title if the certificate of title has already been transferred from the name of the true owner to the name of the forger or the name indicated by the forger., although an original owner of a registered land may seek the Annulment of a transfer thereof on the ground of fraud, such a remedy, however, is 'without prejudice to the rights of any innocent holder for value of the certificate of title.

The right or lien of an innocent mortgagee for value upon the land mortgaged must be respected and protected, even if the mortgagor obtained his title through fraud. The remedy of the persons prejudiced is to bring an action for damages against those who caused the fraud, and if the latter are insolvent, an action against the Treasurer of the Philippines may be filed for recovery of damages against the Assurance Fund.

RAMIREZ vs CA

, that the assignment vested in petitioner the right to redeem the property, did she exercise such right? . . . petitioner (assuming her right to redeem) failed to exercise that right within the period granted by law when she redeemed the property only on August 19, 1980. 5 petitioner after the one (1) year period had expired. By accepting the redemption price after the statutory period for redemption had expired, PNB is considered to have waived the one (1) year period within which Ramirez could redeem the property. There is nothing in the law which prevents such a waiver.The rights of a second mortgagee are strictly subordinate to the superior lien of the first mortgagee

SAMANILLA vs. CAJUCOM

Once a mortgage has been signed in due form, the mortgagee is entitled to its registration as a matter of right.

Consideration is presumed sufficient

By executing the mortgage the mortgagor is understood to have given his consent to its registration, and he cannot be permitted to revoke it unilaterally. The validity and fulfillment of contracts cannot be left to the will of one of the contracting partiesTo overcome the presumption of consideration, appellants must show the alleged lack of consideration

of the mortgage by preponderance of evidence in a proper action.

SANTIAGO vs. PIONEERforeclosure is but a necessary consequence of non-payment of a mortgage indebtednessA mortgage directly and immediately subjects the property upon which it is imposed to the fulfillment of the obligation for whose security it was constituted. 6 Kinds of foreclosure

Judicial – bring an action for that purpose in a proper courtor extrajudicial – express authority to sell given to mortgageeOrdinary action by the mortgagee Foreclosure by mortgage under power of sale by the mortgagee

Mortgage is a mere security not a satisfaction for an obligation- mortgagee can still recover the deficiencyStipulation of upset price in mortgages are void: it must be sold to the highest bidder

Requisites of Redemption:

Within one year from the registration of the certificate of salePayment of purchase price, 1 % interest, taxes*****payment must be made in the prescribed period

ANTICHRESIS

The delivery of the immovable is required so the creditor can make use of its fruits NOT for the contract to be binding.

Covers only the immovables not its fruits.

*******Application of the fruits to the interest and the principal must be expressly stated, otherwise it is considered mortgage

*****does not cover the immovable, only its fruits*****Amount of principal and interest shall be in writing; otherwise it is void.

The creditor is obliged to pay the taxes and charges upon the estate and bears expenses of preservation and repair, sums deducted from the fruits

Remedy if antichretic debtor cannot pay

1. bring an action for specific performance2. petition for the sale of the real property as in a foreclosure of mortgages under Rule 68 of the Rules of Court3. parties may also agree on an extra judicial foreclosure same with mortgage

*******cannot be acquired by prescription.. any agreement in contrast is VOID.Possession of an antichretic creditor is not that of an owner. He cannot aquire ownership of a property subject of the antichresis unless he repudiates his status as antichretic creditor

Exess of the fruits after applying to the interest is applied to the principal

CHATTEL MORTGAGE

**** contract where a personal property is recorded in the Chattel Mortgage Register as a security for the performance of an obligation

- delivery to the creditor not necessary- registration required by law- in chattel, if foreclosed the excess over the amt due goes to the debtor- creditor entitled to recover deficiency from debtor

punishable:- property removed for the province / city- pledging, selling the mortgaged property w/o the consent of the mortgagee …The mortgagor is not relieved of the criminal liability even if the mortgage indebtedness is paid in full

Subject matter of pledge:

- personal/ movable- shares of stock- interest in the business- machinery (treated as personal)- vessels- motor vehicles- house of mixed materials- house intended to be demolished- house built on rented lands- growing crops