Civil Procedure

Civil Procedure A satisfied Microsoft Office User Normal JOJO 3 3 2002-01-10T09:33:00Z 2002-01-11T05:03:00Z 1 316 1805 sc 15 3 2216 9.2720 120

7. Foreclosure of Real Estate Mortgage

1. The judgment in a judicial foreclosure proceeding should:

(1) make a finding of the amount due the plaintiff including interest, cost and other charges approved by the court;

(2) order defendant to pay said amount within a period of not less than ninety (90) days nor more than one hundred twenty (120) days from entry of judgment; and

(3) if the defendant defaults, the court should order the sale at public auction of the mortgaged property.

2. Distinction Between Right of Redemption and Equity of Redemption

Equity of Redemption is the right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the amount fixed in the decision of the court within ninety (90) to one hundred twenty (120) days after entry of judgment or even after the foreclosure sale but prior to its confirmation. 447 On the other hand, right of redemption is the right granted to the debtor-mortgagor, his successor-in-interest or any judicial creditor of said debtor-mortgagor or any person having a lien in the property subsequent to its mortgage or deed of trust under which the property is sold to redeem the property within one (1) year from the registration of the sheriff's certificate of foreclosure sale. 448

For as long as the sale have not been validly confirmed, the equity of redemption may be exercised by the mortgagor or his successors-in-interest. 449

3. Writ of Possession in Judicial Foreclosure

After the foreclosure sale is confirmed, the court, upon motion, may issue a writ of possession to install the buyer at auction into possession of the property sold.

4. Deficiency Judgment

Some rules on deficiency judgment are:

(1) A motion for deficiency judgment may be made only after the sale and after it becomes known that a deficiency exists. 450

(2) Deficiency judgment cannot be rendered against a non-resident defendant. 451

(3) No deficiency judgment may be rendered against the owner who is not a mortgagor and has not assumed personal liability for the debt. The remedy is an ordinary action against the debtor. 452

(4) If the debtor dies, the deficiency may be filed as a claim against his estate. 453

447 Rules of Court, Rule 68, Sec. 52; Limpin v. Intermediate Appellate Court, No. L-70987, September 29, 1988, 166 SCRA 87.

448 Rules of Court, Rule 39, Sec. 29; De Castro v. Intermediate Appellate Court, No. L-73859, September 26, 1988, 165 SCRA 654.

449 Limpin v. Intermediate Appellate Court, supra , note 447.

450 Governor of the Philippine Islands v. Torralba Viuda de Santos, 61 Phil. 689 [1935].

451 El Banco Espa�ol-Filipino v. Palanca, 37 Phil. 921 [1918].

452 Philippine Trust Co. v. Echaus Tan Siua, 52 Phil. 852 [1929].

453 Rules of Court, Rule 86, Sec. 7.