Art. 2124. Only the following property may be the object the government will require you to update payment of of a contract of mortgage: realty taxes on the property. After payment of the (1) Immovables; registration fees, the mortgage will be annotated on the title. (2) Alienable real rights in accordance with the laws, imposed upon immovables. EFFECT OF INVALIDITY OF MORTGAGE ON PRINCIPAL OBLIGATION Nevertheless, movables may be the object of a chattel 1. The principal obligation remains valid mortgage. (1874a) 2. Mortgage deed remains as evidence of principal obligation MORTGAGE Art. 2126. The mortgage directly and immediately > Contract whereby the debtor secures to the creditor subjects the property upon which it is imposed, the fulfillment of a principal obligation, specially substituting whoever the possessor may be, to the fulfillment of to such security immovable property or real rights over the obligation for whose security it was constituted. immovable property which obligation shall be satisfied with (1876) the proceeds of sale of said property or rights in case the said obligation is not complied with at the time stipulated EFFECTS OF MORTGAGE > Real, accessory, unilateral and subsidiary contract 1. Creates a real right a. If the mortgagor sells the encumbered property, the POSSESSION OF PROPERTY MORTGAGED property remains subject to the fulfillment of the principal > As a general rule, it is retained by the mortgagor obligation secured by it > The mortgaged property is only subjected to a lien by the b. The mortgagee has a right to rely in good faith on what mortgagee but ownership is retained by the mortgagor appears on the certificate of title of the mortgagor of the property given as security and in the PAYMENT OF INTEREST ON MORTGAGE CREDIT absence of anything to excite suspicion, he is > With regard to fruits or interest, the mortgagee shall under no obligation to look beyond the certificate be subject to the obligation of an antichresis creditor c. Until the action for expropriation has been completed, ownership over the property remains SUBJECT MATTER OF MORTGAGE with the registered owner > Immovables and alienable real rights over immovables d. Banking institution must exercise due diligence before entering contract of mortgage FUTURE PROPERTY CANNOT BE OBJECT OF e. If a person is the first mortgagee over a property which MORTGAGE was sold in an auction by the second mortgagee, the only right left to him is to collect his > Future property cannot be the object of a contract of mortgage credit from the purchaser thereof mortgage during the sale conducted > A stipulation however subjecting the mortgage lien, f. In a suit to nullify a certificate of title, the mortgagee properties which the mortgagor may subsequently acquire, is an indispensable party install, or use in connection with real property already 2. Creates merely an encumbrance mortgaged belonging to the mortgagor is valid Art. 2127. The mortgage extends to the natural Art. 2125. In addition to the requisites stated in accessions, to the improvements, growing fruits, Article 2085, it is indispensable, in order that a and the rents or income not yet received when the mortgage may be validly constituted, that the obligation becomes due, and to the amount of the document in which it appears be recorded in the indemnity granted or owing to the proprietor from the Registry of Property. If the instrument is not recorded, insurers of the property mortgaged, or in virtue of the mortgage is nevertheless binding expropriation for public use, with the between the parties. declarations, amplifications and limitations established by law, whether the estate remains in The persons in whose favor the law establishes a the possession of the mortgagor, or it passes into mortgage have no other right than to demand the the hands of a third person. (1877) execution and the recording of the document in which the mortgage is formalized. (1875a) EXTENT OF MORTGAGE > A REM constituted on an immovable property is not limited ESSENTIAL REQUISITES OF A MORTGAGE to the property itself but also extends to all its accessions, 1. To secure the fulfillment of a principal obligation improvements, growing fruits, and rents 2. The mortgagor should be the absolute owner of > To exclude them, it is necessary that there be an express thing mortgaged stipulation to that effect 3. The mortgagor should have free disposal of the thing Art. 2128. The mortgage credit may be 4. When the principal obligation becomes due, the alienated or assigned to a third person, in whole thing mortgaged may be alienated to secure payment or in part, with the formalities required by law. (1878) 5. For a mortgage to be validly constituted and to prejudice third persons, the mortgage should be Art. 2129. The creditor may claim from a third recorded with the Registry of Property person in possession of the mortgaged property, the payment of the part of the credit secured by the property NO VALIDLY CONSTITUTED MORTGAGE IF THE which said third person possesses, in the terms and DEED OF MORTGAGE IS A MERE PRIVATE with the formalities which the law establishes. (1879) DOCUMENT RIGHT OF CREDITOR AGAINST TRANSFEREE OF MORTGAGED PROPERTY MORTGAGE IS NEVERTHELESS BINDING > The fact that the mortgagor has transferred the mortgaged BETWEEN THE PARTIES EVEN IF UNREGISTERED property to a third person doesn't relieve him from his > Actual knowledge on the part of the buyer obligation to pay the debt to the mortgage creditor in the > Actual knowledge=registration absence of Novation > A recorded REM is merely an accessory contract PROCEDURE: WHAT HAPPENS WHEN YOU ENTER > The creditor may only demand from any possessor INTO A CONTRACT OF MORTGAGE? the payment only of the part of the credit secured by 1. Execute the document of mortgage said property 2. Go to a notary public, who will notarize the document. > Necessary that there be prior demand for payment be 3. Pay the documentary stamp tax within the first five days made on the debtor and the latter failed to pay of the succeeding month. The doc stamp tax is a > Does not really apply to all third persons in possession of percentage of the value of the property mortgaged. the property 4. Go to the Office of the Register of Deeds and pay > It only applies to those in possession of the mortgagee or successor in interest may take possession of mortgaged property in the concept of owner. If the said property after default in accordance with the possession by a third person is only as lessee, the creditor prescribed judicial procedures for foreclosure and may not collect the credit from that third person. receivership and in no case exceeding 5 years from actual Art. 2130. A stipulation forbidding the owner possession. from alienating the immovable mortgaged shall be void. (n) Section 2. All laws, orders, or regulations, or parts thereof inconsistent with the provisions of this Act, are repealed or STIPULATION FORBIDDING ALIENATION OF modified accordingly. MORTGAGED PROPERTY > Such stipulation would be contrary to public good Section 3. This Act shall take effect upon its approval. inasmuch as the transmission of property should not be NOTES ON RA 133: unduly impeded 1. You can mortgage to a foreigner. RA 133 sanctions CAN MORTGAGEE PROHIBIT ENCUMBERANCES this. Ownership is not equivalent to mortgage. Nonetheless, WITHOUT PRIOR CONSENT? he can only institute judicial proceedings and not > Yes, regulation is not the same as prohibition extrajudicially foreclose the mortgage. Furthermore, he > The mortgagee may even add a standard. This is for good cannot bid or take part in the sale of the real property. measure on the part of the mortgagee which is allowed by 2. The foreigner may not take possession of the law. property during the mortgage. He could only possess the same as a lessee. IN THE FIRST PLACE, WHY WOULD YOU BE 3. The foreigner may only take possession of the CONCERNED WITH THE DISPOSITION OF THE mortgaged property after default, and for the sole PROPERTY IF YOU ARE THE MORTGAGEE? purpose of foreclosure, enforcement or other > You don't want the property to be in the hands of someone proceedings. This should not exceed the period of 5 who is litigious years from actual possession. > As a means of monitoring the financial condition of the mortgagor
Art. 2131. The form, extent and consequences of a mortgage, both as to its constitution, modification and extinguishment, and as to other matters not included in this Chapter, shall be governed by the provisions of the Mortgage Law and of the Land Registration Law. (1880a) FORECLOSURE > Remedy available to the mortgagee by which he subjects the mortgaged property to the satisfaction of the obligation to secure which the mortgage was given > Denotes a procedure adopted by the mortgagee to terminate the rights of the mortgagor on the property and includes the sale itself
VALIDITY AND EFFECT OF FORECLOSURE
> The right to foreclose the mortgage and to have the property seized and sold with a view to applying the proceeds to the payment of the principal obligation > A mortgage contract may contain an acceleration clause —on occasion of the mortgagor’s default, the whole sum remaining unpaid automatically becomes due and payable > Essence of mortgage contract—property has been identified and separated from a mass of the property of the mortgagor to secure the payment of a principal obligation > Once the proceeds have been applied to the payment of the principal obligation, the debtor cannot anymore be asked to pay unless there is deficiency
KINDS OF FORECLOSURE
1. Judicial 2. Extrajudicial AN ACT TO AUTHORIZE THE MORTGAGE OF PRIVATE REAL PROPERTY IN FAVOR OF ANY INDIVIDUAL, CORPORATION, OR ASSOCIATION SUBJECT TO CERTAIN CONDITIONS
Section 1. Any provision of law to the contrary
notwithstanding, private real property may be mortgaged in favor of any individual, corporation, or association, but the mortgagee or his successor in interest, if disqualified to acquire or hold lands of the public domain in the Philippines, shall not take possession of the mortgaged property during the existence of the mortgage and shall not take possession of the mortgaged property except after default and for the sole purpose of foreclosure, receivership, enforcement or other proceedings and in no case for a period of more than 5 years from actual possession and shall not bid or take part in any sale of such real property in case of foreclosure: Provided, that said