DEFENSE FOR COLLECTION SUM OF MONEY

The liability of Edna Lindo on the principal contract of the loan however subsists
notwithstanding the illegality of the mortgage. Indeed, where a mortgage is not
valid, the principal obligation which it guarantees is not thereby rendered null
and void. That obligation matures and becomes demandable in accordance
with the stipulation pertaining to it. Under the foregoing circumstances, what is
lost is merely the right to foreclose the mortgage as a special remedy for
satisfying or settling the indebtedness which is the principal obligation. In case of
nullity, the mortgage deed remains as evidence or proof of a personal
obligation of the debtor and the amount due to the creditor may be enforced in
an ordinary action.

In view of the foregoing, judgment is hereby rendered declaring the deed of

real estate mortgage as void in the absence of the authority or consent of
petitioners spouse therein. The liability of petitioner on the principal contract of
loan however subsists notwithstanding the illegality of the real estate mortgage.

the Court ruled that the remedies are alternative and not cumulative and held
that the filing of a criminal action for violation of Batas Pambansa Blg. 22 was in
effect a collection suit or a suit for the recovery of the mortgage-debt.21 In that
case, however, this Court pro hac vice, ruled that respondents could still be held
liable for the balance of the loan, applying the principle that no person may
unjustly enrich himself at the expense of another

Collection of Sum of Money with Damages with an Application for the Issuance
of a Writ of Preliminary Attachment.

his finds support in Section 1, Rule 131 Rules of Court. In this jurisdiction, fraud is
never presumed." (Emphasis supplied) As correctly noted by Wolfe, although
Sec. 1 of Rule 57 allows a party to invoke fraud as a ground for the issuance of a
writ of attachment, the Rules require that in all averments of fraud, the
circumstances constituting fraud must be stated with particularity, pursuant to
Rule 8, Section 5. The Complaint merely stated, in paragraph 23 thereof that "For
failing to pay the use [of] facilities and services – in the form of boat storage
fees, the Defendant is clearly guilty of fraud which entitles the Plaintiff to a Writ
of Preliminary Attachment upon the property of the Defendant as security for
the satisfaction of any judgment herein." This allegation does not constitute
fraud as contemplated by law, fraud being the "generic term embracing all
multifarious means which human ingenuity can devise, and which are resorted
to by one individual to secure an advantage over another by false suggestions
or by suppression of truth and includes all surprise, trick, cunning, dissembling
and any unfair way by which another is cheated." In this instance, Wolfe's mere
failure to pay the boat storage fees does not necessarily amount to fraud,
absent any showing that such failure was due to [insidious] machinations and
intent on his part to defraud Watercraft of the amount due it.

A writ of preliminary attachment is defined as a provisional remedy issued upon

order of the court where an action is pending to be levied upon the property or
properties of the defendant therein, the same to be held thereafter by the
sheriff as security for the satisfaction of whatever judgment that might be
secured in the said action by the attaching creditor against the
defendant.10 However, it should be resorted to only when necessary and as a
last remedy because it exposes the debtor to humiliation and annoyance.11 It
must be granted only on concrete and specific grounds and not merely on
general averments quoting the words of the rules.12 Since attachment is harsh,
extraordinary, and summary in nature,13 the rules on the application of a writ of
attachment must be strictly construed in favor of the defendant. the court14 in
which the action is pending. Such bond executed to the adverse party in the
amount fixed by the court is subject to the conditions that the applicant will pay:
(1) all costs which may be adjudged to the adverse party; and (2) all damages
which such party may sustain by reason of the attachment, if the court shall
finally adjudge that the applicant was not entitled thereto.15 As to the requisite
affidavit of merit, Section 3,16 Rule 57of the Rules of Court states that an order of
attachment shall be granted only when it appears in the affidavit of the
applicant, or of some other person who personally knows the facts:
1. that a sufficient cause of action exists;
2. that the case is one of those mentioned in Section 117 hereof;

3. that there is no other sufficient security for the claim sought to be enforced by
the action; and

4. that the amount due to the applicant, or the value of the property the
possession of which he is entitled to recover, is as much as the sum for which the
order is granted above all legal counterclaims.

The mere filing of an affidavit reciting the facts required by Section 3, Rule 57,
however, is not enough to compel the judge to grant the writ of preliminary
attachment. Whether or not the affidavit sufficiently established facts therein
stated is a question to be determined by the court in the exercise of its
discretion.18"The sufficiency or insufficiency of an affidavit depends upon the
amount of credit given it by the judge, and its acceptance or rejection, upon
his sound discretion."19 Thus, in reviewing the conflicting findings of the CA and
the RTC on the pivotal issue of whether or not Watercraft's affidavit of merit
sufficiently established facts which constitute as grounds upon which
attachment may be issued under Section 1 (a)20 and (d),21Rule 57, the Court will
examine the Affidavit of Preliminary Attachment22 of Rosario E. Rañoa, its Vice-
President, which reiterated the following allegations in its complaint to
substantiate the application for a writ of preliminary attachment:
xxxx

REAL ESTATE MORTGAGE A real estate mortgage is a contract in which the

debtor guarantees to the creditor the fulfillment of a principal obligation,
subjecting for the faithful compliance therewith a real property in case of non-
fulfillment of said obligation at the time stipulated (Manresa). It is a lien on
specific or identified immovable property. It directly and immediately subjects
the property upon which it is imposed, whoever the possessor may be, to the
fulfillment of the obligation for whose security it was constituted. It creates a real
right enforceable against the whole world (DBP v. NLRC, 183 SCRA 328
[1990]). Foreclosure of mortgage

Foreclosure of real estate mortgage is either done extra-judicially or

judicially. The provisions of Rule 68 of the 1997 Rules of Civil Procedure govern
judicial foreclosure. The extra-judicial foreclosure of real estate mortgage, on
the other hand, is carried out in the procedure governed by the provisions
of Act 3135, as amended, otherwise known as “An Act to Regulate the Sale of
Property Under Special Powers Inserted in or Annexed to Real Estate
Mortgages.”

Prohibition on pactum commissorium

Garcia claims that the stipulation appointing Villar, the mortgagee, as the
mortgagors attorney-in-fact, to sell the property in case of default in the
payment of the loan, is in violation of the prohibition on pactum commissorium,
as stated under Article 2088 of the Civil Code, viz:

Art. 2088. The creditor cannot appropriate the things given by way of pledge or
mortgage, or dispose of them. Any stipulation to the contrary is null and void.
The power of attorney provision in the Deed of Real Estate Mortgage reads:

5. Power of Attorney of MORTGAGEE. Effective upon the breach of any condition

of this Mortgage, and in addition to the remedies herein stipulated, the
MORTGAGEE is likewise appointed attorney-in-fact of the MORTGAGOR with full
power and authority to take actual possession of the mortgaged properties, to
sell, lease any of the mortgaged properties, to collect rents, to execute deeds of
sale, lease, or agreement that may be deemed convenient, to make repairs or
improvements on the mortgaged properties and to pay the same, and perform
any other act which the MORTGAGEE may deem convenient for the proper
administration of the mortgaged properties. The payment of any expenses
advanced by the MORTGAGEE in connection with the purpose indicated herein
is also secured by this Mortgage. Any amount received from the sale, disposal or
administration abovementioned maybe applied by assessments and other
incidental expenses and obligations and to the payment of original
indebtedness including interest and penalties thereon. The power herein
granted shall not be revoked during the life of this Mortgage and all acts which
may be executed by the MORTGAGEE by virtue of said power are hereby
ratified.[38]

The following are the elements of pactum commissorium:

(1) There should be a property mortgaged by way of security for the payment of
the principal obligation; and

(2) There should be a stipulation for automatic appropriation by the creditor of

the thing mortgaged in case of non-payment of the principal obligation within
the stipulated period.[39]

Villars purchase of the subject property did not violate the prohibition
on pactum commissorium. The power of attorney provision above did not
provide that the ownership over the subject property would automatically pass
to Villar upon Galass failure to pay the loan on time. What it granted was the
mere appointment of Villar as attorney-in-fact, with authority to sell or otherwise
dispose of the subject property, and to apply the proceeds to the payment of
the loan.[40] This provision is customary in mortgage contracts, and is in
conformity with Article 2087 of the Civil Code, which reads:

Art. 2087. It is also of the essence of these contracts that when the principal
obligation becomes due, the things in which the pledge or mortgage consists
may be alienated for the payment to the creditor.

Galass decision to eventually sell the subject property to Villar for an

additional P1,500,000.00 was well within the scope of her rights as the owner of
the subject property.The subject property was transferred to Villar by virtue of
another and separate contract, which is the Deed of Sale. Garcia never
alleged that the transfer of the subject property to Villar was automatic upon
Galass failure to discharge her debt, or that the sale was simulated to cover up
such automatic transfer.

The real nature of a mortgage is described in Article 2126 of the Civil Code, to
wit:

Art. 2126. The mortgage directly and immediately subjects the property upon
which it is imposed, whoever the possessor may be, to the fulfillment of the
obligation for whose security it was constituted.

Simply put, a mortgage is a real right, which follows the property, even after
subsequent transfers by the mortgagor. A registered mortgage lien is considered
inseparable from the property inasmuch as it is a right in rem.[41]
The sale or transfer of the mortgaged property cannot affect or release the
mortgage; thus the purchaser or transferee is necessarily bound to
acknowledge and respect the encumbrance.[42] In fact, under Article 2129 of
the Civil Code, the mortgage on the property may still be foreclosed despite the
transfer, viz:

Art. 2129. The creditor may claim from a third person in possession of the
mortgaged property, the payment of the part of the credit secured by the
property which said third person possesses, in terms and with the formalities
which the law establishes.

Therefore, the obligation to pay the mortgage indebtedness remains with the
original debtors Galas and Pingol.[44] The case of E.C. McCullough & Co. v.
Veloso and Serna[45] is square on this point:

The effects of a transfer of a mortgaged property to a third person are well

determined by the Civil Code. According to article 1879[46] of this Code, 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 the law. The Mortgage
Law in force at the promulgation of the Civil Code and referred to in the latter,
provided, among other things, that the debtor should not pay the debt upon its
maturity after judicial or notarial demand, for payment has been made by the
creditor upon him. (Art. 135 of the Mortgage Law of the Philippines of
1889.) According to this, the obligation of the new possessor to pay the debt
originated only from the right of the creditor to demand payment of him, it
being necessary that a demand for payment should have previously been
made upon the debtor and the latter should have failed to pay. And even if
these requirements were complied with, still the third possessor might abandon
the property mortgaged, and in that case it is considered to be in the possession
of the debtor. (Art. 136 of the same law.) This clearly shows that the spirit of the
Civil Code is to let the obligation of the debtor to pay the debt stand although
the property mortgaged to secure the payment of said debt may have been
transferred to a third person. While the Mortgage Law of 1893 eliminated these
provisions, it contained nothing indicating any change in the spirit of the law in
this respect. Article 129 of this law, which provides the substitution of the debtor
by the third person in possession of the property, for the purposes of the giving of
notice, does not show this change and has reference to a case where the
action is directed only against the property burdened with the mortgage. (Art.
168 of the Regulation.)[47]
_______

The effects of a transfer of a mortgaged property to a third person are well

determined by the Civil Code. According to article 1879[46] of this Code, 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 the law. The Mortgage
Law in force at the promulgation of the Civil Code and referred to in the latter,
provided, among other things, that the debtor should not pay the debt upon its
maturity after judicial or notarial demand, for payment has been made by the
creditor upon him. (Art. 135 of the Mortgage Law of the Philippines of
1889.) According to this, the obligation of the new possessor to pay the debt
originated only from the right of the creditor to demand payment of him, it
being necessary that a demand for payment should have previously been
made upon the debtor and the latter should have failed to pay. And even if
these requirements were complied with, still the third possessor might abandon
the property mortgaged, and in that case it is considered to be in the possession
of the debtor. (Art. 136 of the same law.) This clearly shows that the spirit of the
Civil Code is to let the obligation of the debtor to pay the debt stand although
the property mortgaged to secure the payment of said debt may have been
transferred to a third person. While the Mortgage Law of 1893 eliminated these
provisions, it contained nothing indicating any change in the spirit of the law in
this respect. Article 129 of this law, which provides the substitution of the debtor
by the third person in possession of the property, for the purposes of the giving of
notice, does not show this change and has reference to a case where the
action is directed only against the property burdened with the mortgage. (Art.
168 of the Regulation.

This pronouncement was reiterated in Rodriguez v. Reyes[48] wherein this Court,

even before quoting the same above portion in E.C. McCullough & Co. v.
Veloso and Serna, held:
We find the stand of petitioners-appellants to be unmeritorious and untenable.
The maxim caveat emptor applies only to execution sales, and this was not one
such. The mere fact that the purchaser of an immovable has notice that the
acquired realty is encumbered with a mortgage does not render him liable for
the payment of the debt guaranteed by the mortgage, in the absence of
stipulation or condition that he is to assume payment of the mortgage debt. The
reason is plain: the mortgage is merely an encumbrance on the property,
entitling the mortgagee to have the property foreclosed, i.e., sold, in case the
principal obligor does not pay the mortgage debt, and apply the proceeds of
the sale to the satisfaction of his credit. Mortgage is merely an accessory
undertaking for the convenience and security of the mortgage creditor, and
exists independently of the obligation to pay the debt secured by it. The
mortgagee, if he is so minded, can waive the mortgage security and proceed
to collect the principal debt by personal action against the original mortgagor.

If the property is registered in your dad's name, you cannot get a home loan on
your name. Look at it from a lender's point of view, you take the loan and
vanish, they cannot take possession of the property as it’s not on your name.
Legally your dad is not party to a transaction between you and Bank.

If your intent is to get some funds for the property then; Options: Let your dad
take a loan and you can co-sign [although most Bank’s if you are co-signing
need your name on the property]. This may allow your dad to take a loan if his
own income does not allow him to do so.

Take a personal loan for smaller amount, though the rate of interest would be
high and the tenure (duration of the loan) shorter.

If your intent is not for funding the property but to get tax breaks; then the
above will not help you. You would need to have the property in your name

ou can collect from your friend even in the absence of any written agreement
to support your claim. A contract was perfected from the moment both of you
agreed as to the renovation of his house. Under Article 1305 of the Civil Code of
the Philippines, a contract is a meeting of minds between two persons whereby
one binds himself, with respect to the other, to give something or to render some
service.

Contracts shall be obligatory, in whatever form they may have been entered
into, provided all the essential requisites for their validity are present (Article 1356,
Ibid). The following are the requisites of a contract:

Consent of the contracting parties;

Object certain which is the subject of the contract; and

Cause of the obligation which is established (Article 1318, Id.).

The contract that you entered into should have been in writing to be enforced
as required under the Statute of Frauds (Article 1403 (2), Id.), however, this will
not apply if the contract is already executed like the one in your case. This finds
support from the pronouncement of the Supreme Court in the case of Ordua et
al., vs Fuentebella et al. (G.R. No. 176841, June 29, 2010):

Foremost of these is that the Statute of Frauds expressed in Article 1403, par. (2),
of the Civil Code applies only to executory contracts, i.e., those where no
performance has yet been made. Stated a bit differently, the legal
consequence of non-compliance with the Statute does not come into play
where the contract in question is completed, executed, or partially
consummated.

You need to send a demand letter to your friend for the payment of
P124,000.00. In case of non-payment, you can initiate a collection of sum of
money before the Municipal Trial Court designated as Small Claims Court where
you or your friend resides, since the amount you intend to collect does not
exceed P200,000.00 (Section 2, 2016 Revised Rules of Procedure for Small Claims
Cases (A.M. No. 08-8-7-SC)).
Again, we find it necessary to mention that this opinion is solely based on the
facts you have narrated and our appreciation of the same. The opinion may
vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Sir,
Good day!

Attached herewith is the complaint for Ruben Gameng for collection of sum of
money with writ of preliminary attachment.

Upon analyzing the documents and verifying with the instrumental persons in
MICRO COMVAL, Mr. Jen and Ma’am Procell, the following are my discoveries
and suggestions:

1. The obligation of Ruben Gameng against the company can be enforced

by either instituting a foreclosure proceeding or through a collection of
sum of money since we can avail the two as an alternative remedy.

2. But upon my inquiry to Mr. Jen, the said property made as security in the
Real Estate Mortgaged is still not in the name of Mr. Ruben Gameng, it is
owned and registered to other person and until now the original title is in
the office and wherefore creates a presumption that the deed of sale
submitted to the office made by and between Gameng and Sotero (the
name in the TCT) is considered simulated one done to procure
fraudulently the loan.

3. This brings me to the next feasible option which is the collection of sum of
money with writ of preliminary attachment, as what you wanted me to
make, which is herein attached for your perusal.

4. I then suggest that an immediate demand of Mr. Gameng’s indebtedness

be done as soon as possible as preliminary step to make our case for
collection of sum of money. Attached therewith also for your perusal is the
demand letters made, the first demand and final demand letter address
to Mr. Ruben Gameng.
 5. I requested in the main office to do verifications to Registry of Deeds if
there has been already a cancellation of TCT and to request a
certification from Registry of Deeds in order to strengthen our ground for
writ of preliminary attachment. As according to the rule, among others a
party defendant must have been guilty of a fraud in contracting the debt
or incurring the obligation upon which the action is brought, or in the
performance thereof; (Rule 57)

Thank You.

JENY

They say that business and pleasure don’t mix, and this pairing is a prime
example of that. It’s hard to get down to business romantically when you’re
stuck in a logical frame of mind. Love and reason aren’t always compatible,
and it’s hard for you to see the point in the little sentimental details associated
with a romantic connection. Indulgence takes a back seat to practicality, and
you show love more often by what you can do outside of the bedroom, not in it.

lackadaisical