SECOND DIVISION


SPOUSES VICTOR ONG

and GRACE TIU ONG,

Petitioners,

- versus -

PREMIER DEVELOPMENT BANK, THE PROVINCIAL SHERIFF OF RIZAL GRACE S. BELVIS and DEPUTY SHERIFF VICTOR S. STA. ANA ,

Respondents.

G.R. No. 159615

Present:

CARPIO, J., Chairperson,

NACHURA,

PERALTA,

ABAD, and

MENDOZA, JJ.



Promulgated:

February 9, 2011

x ----------------------------x

D E C I S I O N

 

MENDOZA, J.:

This is a petition for review on certiorari filed by the petitioners, spouses Victor and Grace Ong (Spouses Ong), seeking to set aside the March 31, 2003 Decision[1] of the Court of Appeals (CA) which affirmed the decision[2] of the Regional Trial Court Branch 267, Pasig City (RTC), dismissing the petitioners’ complaint for annulment of extra-judicial foreclosure of real estate mortgage, and its August 13, 2003 Resolution denying the motion for reconsideration.[3]

The Facts

Records reveal that Kenlene Laboratories, Inc. with Spouses Ong acting as Director and Treasurer, respectively, obtained a loan from Premier Development Bank (PDB) in the amount of P10,000,000.00.  On September 27, 1990, Spouses Ong executed a promissory note obligating themselves to pay PDB on or before September 27, 1997 the amount of the loan with interest at 31% per annum with monthly installment of P292,658.08.  The petitioners’ loan application with the PDB was secured by a real estate mortgage over Spouses Ong’s residential property in West Greenhills, San Juan, Metro Manila.

For failure of the Spouses Ong to pay their monthly amortizations, PDB initiated extrajudicial foreclosure proceedings on the real estate mortgage with the Provincial Sheriff in accordance with Act No. 3135, otherwise known as “An Act to Regulate the Sale of Property Under Special Powers Inserted in or Annexed to Real-Estate Mortgages.”  The Notice of Sheriff’s Sale dated May 19, 1993 was prepared and issued by the Clerk of Court.

On May 21, 1993, the deputy sheriff issued a certificate of posting which was followed by the issuance of an affidavit of publication by the editor of Alppa Times on June 14, 1993. The deputy sheriff set the public auction sale of the mortgaged property on June 22, 1993 which was reset to July 22, 1993 upon the request of Spouses Ong.

On July 22, 1993, the mortgaged property was sold to PDB for       P18,914,349.37.

On July 27, 1993, a certificate of sale over the mortgaged property was prepared and annotation on the title was made on August 18, 1993.

On September 2, 1993, within the one-year redemption period, PDB filed a petition for a writ of possession, which was granted by the RTC in its order dated March 15, 1994. On May 4, 1994, a writ of possession was issued.  Spouses Ong filed a motion for reconsideration to recall the writ of possession, but it was denied by the RTC.

Thereafter, Spouses Ong filed a petition for prohibition and preliminary injunction before the CA to enjoin the public respondents from taking further action in connection with the extra-judicial foreclosure sale made on July 22, 1993 including the implementation of the writ of possession. On October 25, 1994, the CA rendered a decision[4] dismissing their petition. Their motion for reconsideration was likewise denied.

On June 8, 2000, this Court issued a resolution[5] dismissing the petition for review on certiorari filed by Spouses Ong questioning the October 25, 1994 CA decision.

On September 13, 2000, the Court issued a resolution[6] denying with finality the motion for reconsideration filed by Spouses Ong. Thus, the June 8, 2000 Resolution of this Court became final and executory on November 9, 2000 per entry of judgment.[7]

Records also show that on July 19, 1994, Spouses Ong instituted an action for annulment of extrajudicial foreclosure before the RTC alleging non-compliance with the formal requirements of notice and publication under Act No. 3135[8] specifically that: 1) the sheriff failed to post the notice of sale in the premises of the mortgaged property and the place where the auction was conducted and other conspicuous public places within the Municipality of San Juan; and 2) the newspaper Alppa Times, where the notice of sale was published, was not a newspaper of general circulation. Spouses Ong likewise alleged that the interests and penalties on the loan were over-computed and the figures were bloated.

On the other hand, PDB countered that there were no irregularities in the conduct of the foreclosure proceedings explaining that: 1) the Notice of Sheriff’s Sale dated May 19, 1993 was issued by the Office of the Clerk of Court and Ex-Officio Sheriff; 2) a Certificate of Posting was signed and issued by the deputy sheriff for the said foreclosure proceedings; and 3) the notice of sale was published once a week for three consecutive weeks in Alppa Times, as evidenced by the Affidavit of Publication dated June 14, 1993.

Decision of the RTC

On July 18, 2000, the RTC rendered a decision dismissing the complaint filed by Spouses Ong, the dispositive portion of which reads, as follows:

WHEREFORE, in view of the foregoing considerations, the instant complaint for annulment of extra-judicial foreclosure of real estate mortgage with application for preliminary injunction and/or Temporary Restraining Order filed by plaintiffs Spouses Victor Ong and Grace Tiu Ong against the defendants Premiere Development Bank, the Provincial Sheriff of Rizal, Grace S. Belvis and Deputy Sheriff Victor S. Sta. Ana is hereby ordered DISMISSED.

Finding the counterclaim of private defendant Premiere Development Bank to be lacking in merit, the same is likewise ordered DISMISSED.

SO ORDERED.

The RTC ruled, among others, that Spouses Ong voluntarily and intelligently entered into a valid loan contract with the PDB. The latter was able to prove that Spouses Ong defaulted in the payment of their loan obligations, so it was proper for it to foreclose their collateral for the subject loan.

The RTC further held that there were no irregularities in the conduct of the foreclosure proceedings, which resulted in the grant of the writ of possession. First, Spouses Ong’s claim of irregularities was never previously raised and contrary to their contentions during the proceedings for the issuance of the writ of possession. In fact, they intervened only at the time PDB requested for the issuance of a writ of possession. They did not question the conduct of the foreclosure particularly the alleged defect in the publication of the notice of sheriff’s sale by Alppa Times.

Second, the affidavit of publication executed by the editor of Alppa Times entitled said document to be given full faith and credit in the absence of competent evidence showing that its due execution was tainted with defects and irregularities that would warrant a declaration of its nullity.

Third, the Notice of Sale was posted in a conspicuous place within the Municipal Hall of San Juan. Thus, the presumption of regularity in the performance of duty by the sheriff prevailed.

Fourth, it was established in the certification issued by the Office of the Clerk of Court that Alppa Times was duly accredited as a publisher of the notice of sheriff’s sale at the time of the foreclosure of the subject property.  Spouses Ong’s self-serving statement that Alppa Times was not a newspaper of general circulation could not prevail over the issued certification by the Clerk of Court and Ex-Officio Sheriff.

Finally, the RTC found that the newspaper dealer and newspaper vendor presented by Spouses Ong were not expert witnesses or even competent enough to declare that Alppa Times was a non-existent publication and not a newspaper of general circulation.

Not satisfied with the Decision, Spouses Ong appealed before the CA in CA G.R. CV No. 68576 entitled Spouses Victor Ong and Grace Tiu Ong v. Premier Development Bank, The Provincial Sheriff of Rizal Grace S. Belvis and Deputy Sheriff Victor S. Sta. Ana.

Decision of the CA

On March 31, 2003, the CA affirmed in toto the RTC July 18, 2000 decision.

The CA ruled, among others, that the respondents complied with the notice requirement under Act No. 3135.  The CA found that the primary objective of the notice of sale was satisfied considering that there was sufficient publicity of the sale through a newspaper publication.  It further stated that “courts take judicial notice that newspaper publications have far more reaching effects than posting on bulletin boards in public places. There is a much greater likelihood and probability that announcements or notices published in a newspaper of general circulation shall reach more people than those merely posted in a public bulletin board, no matter how strategic its location may be.” Hence, the publication of the notice of sale in the newspaper of general circulation alone sufficiently complied with the notice and posting requirement of the law.

The CA likewise reasoned that Spouses Ong failed to discharge the burden of proving by convincing evidence that there was actually no compliance with the posting requirement.  Therefore, the foreclosure proceedings had in its favor the presumption of regularity in the absence of evidence to the contrary. The CA also ruled that there was no proof that the property was sold for a price below its market value. Neither was there any proof shown of collusion among the respondents.

Moreover, the CA ruled that Alppa Times was a newspaper of general circulation for purposes of publication of notices of sale since it was enough that it was published for the dissemination of local news and general information; that it has a bona fide subscription list of paying subscribers; that it was published at regular intervals; and that it need not have the largest circulation or subscription.

Lastly, the CA ruled that Spouses Ong failed to prove that there was an error in the computation of their loan obligation. On the contrary, PDB was able to prove by preponderant evidence that Spouses Ong defaulted in the payment of their loan obligation.

Upon the denial of their motion for reconsideration, Spouses Ong filed this petition raising this lone

ISSUE

WHETHER OR NOT THE COURT OF APPEALS ERRED IN SUSTAINING THE VALIDITY OF THE EXTRA-JUDICIAL FORECLOSURE PROCEEDINGS.

Petitioners’ Position

The following arguments were raised by Spouses Ong in support of their position that the subject foreclosure sale was null and void for non-compliance with the requirements of Act No. 3135.

1]    There was no posting of the notice of sheriff’s sale for at least twenty (20) days.

2]    There was no showing that the notice of sale was posted in three (3) public places within the municipality.

3]    There was no adequate showing of newspaper publication for three (3) consecutive weeks.

4]    There was no proof that the Alppa Times was a newspaper of general circulation within the Municipality of San Juan, Metro Manila, as required by Act No. 3135, as amended.

5]    The proper party did not execute the certificate of sale.

6]    Respondent bank’s petition for foreclosure did not specify the amount sought to be liquidated thereby.

7]    Respondent bank’s computation of the obligation was not in accordance with the promissory notes.

8]    The RTC erred in admitting in evidence the bank ledgers.

Respondent Bank’s Position

PDB counters that the findings of fact of the CA and the RTC were in accordance with the evidence presented and the law applicable in the said case.  It further argues that both courts committed no reversible error in ruling that the foreclosure proceedings were conducted in the regular performance of duties by the sheriff and strictly in accordance with the law.

PDB likewise asserts that Spouses Ong’s default on their loan obligations warranted the legitimate exercise by PDB of its rights under the loan and mortgage contracts. It likewise contends that to entertain the challenge of Spouses Ong will allow them to re-open the merits of a final and already executed decision of this Court on the writ of possession given to PDB.

The Court’s Ruling


The petition lacks merit.

First of all, the issue raised by Spouses Ong of whether the legal requirements for a valid foreclosure sale under Act No. 3135 has been actually followed is a question of fact that does not deserve a review by this Court. The recent case of Century Savings Bank v. Spouses Danilo T. Samonte and Rosalinda M. Samonte[9] is instructive:

The distinction between questions of law and questions of fact is settled.  A question of law exists when the doubt or difference centers on what the law is on a certain state of facts.  A question of fact exists if the doubt centers on the truth or falsity of the alleged facts.  Though this delineation seems simple, determining the true nature and extent of the distinction is sometimes problematic. For example, it is incorrect to presume that all cases where the facts are not in dispute automatically involve purely questions of law.

There is a question of law if the issue raised is capable of being resolved without need of reviewing the probative value of the evidence. The resolution of the issue must rest solely on what the law provides on the given set of circumstances.  Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact.  If the query requires a re-evaluation of the credibility of witnesses, or the existence or relevance of surrounding circumstances and their relation to each other, the issue in that query is factual.  Our ruling in Paterno v. Paterno [G.R. No. 63680, 23 March 1990, 183 SCRA 630] is illustrative on this point:

Such questions as whether certain items of evidence should be accorded probative value or weight, or rejected as feeble or spurious, or whether or not the proofs on one side or the other are clear and convincing and adequate to establish a proposition in issue, are without doubt questions of fact. Whether or not the body of proofs presented by a party, weighed and analyzed in relation to contrary evidence submitted by adverse party, may be said to be strong, clear and convincing; whether or not certain documents presented by one side should be accorded full faith and credit in the face of protests as to their spurious character by the other side; whether or not inconsistencies in the body of proofs of a party are of such gravity as to justify refusing to give said proofs weight – all these are issues of fact.

xxx

The main issue in the case at bar is whether the extrajudicial foreclosure sale of respondents’ mortgaged properties was valid.  The resolution of said issue, however, is dependent on the answer to the question of whether the legal requirements on the notice of sale were complied with.  Necessarily, the Court must review the evidence on record, most especially, Notary Public Magpantay’s Certificate of Posting, to determine the weight and probative value to accord the same.  Non-compliance with the requirements of notice and publication in an extrajudicial foreclosure sale is a factual issue.  The resolution thereof by the lower courts is binding and conclusive upon this Court.  However, this rule is subject to exceptions, as when the findings of the trial court and the Court of Appeals are in conflict. Also, it must be noted that non-compliance with the statutory requisites could constitute a jurisdictional defect that would invalidate the sale. [Emphasis supplied]

In the case at bench, the RTC and the CA ruled that the foreclosure proceedings conducted on the mortgaged property of Spouses Ong enjoyed the presumption of regularity in the absence of evidence to the contrary.  The Court respects the ruling of the courts below.

It is an elementary rule that the burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense as required by law. The Court has likewise ruled in previous cases that foreclosure proceedings enjoy the presumption of regularity and that the mortgagor who alleges absence of a requisite has the burden of proving such fact.[10]

In this case, Spouses Ong failed to overcome this presumption with no sufficient evidence to prove the contrary.  Except for their bare allegations, no convincing proof of non-compliance with the posting requirement was presented.  On the other hand, the foreclosure procedure undertaken by PDB was supported by an authenticated and duly executed Affidavit of Publication,[11] Certification of the Office of the Clerk of Court that Alppa Times is an accredited publisher of Notice of Sheriff’s Sale,[12] Notice of Sheriff’s Sale[13] and Certificate of Posting.[14] Spouses Ong likewise failed to present solid evidence of collusion between the Clerk of Court and Deputy Sheriff, on one hand, and PDB, on the other.

Without doubt, the documents shown by PDB prove that the subject foreclosure proceedings were conducted in a regular manner and in accordance with law.

With respect to the computation of Spouses Ong’s loan obligation, the Court agrees with the ruling of the CA that there was no error committed by PDB in computing their total loan obligation.  The loan documents presented by PDB which included the promissory notes,[15] real estate mortgage,[16] and the continuing guaranty/comprehensive security,[17] all prove that Spouses Ong owed PDB a sum of money and failed to settle that obligation. Naturally, the petitioners’ default on their loan obligations warranted the legitimate exercise by the respondent bank of its rights under the loan and mortgage contracts.

WHEREFORE, the petition is DENIED.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO

Associate Justice

Chairperson

ANTONIO EDUARDO B. NACHURA     DIOSDADO M. PERALTA

Associate Justice                                  Associate Justice

ROBERTO A. ABAD

Associate Justice

A T T E S  T A T  I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO

Associate Justice

Chairperson, Second Division

 

 

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA

Chief Justice



[1] Rollo, pp. 47-65. Penned by Associate  Justice Ruben T. Reyes and concurred in by Associate Justice Elvi John S. Asuncion and Associate Justice Lucas P. Bersamin (now with this Court).

[2] Id. at 102-111.

[3] Id. at  75 .

[4] CA rollo, pp. 280-284.

[5] Rollo, pp. 288-299.

[6] Id. at 285.

[7] Id. at 300.

[8] Section 3 of Act No. 3135 provides:

SEC. 3.  Notice shall be given by posting notices of the sale for not less than twenty days in at least three public places of the municipality or city where the property is situated, and if such property is worth more than four hundred pesos, such notice shall also be published once a week for at least three consecutive weeks in a newspaper of general circulation in the municipality or city.

[9] G.R. No. 176212, October 20, 2010, citing Microsoft Corporation v. Maxicorp, Inc., 481 Phil. 550 (2004).

[10] Century Savings Bank v. Spouses Danilo T. Samonte and Rosalinda M. Samonte, G.R. No. 176212, October 20, 2010.

[11] Rollo, pp. 206-207.

[12] Id. at  223.

[13] Id. at 194.

[14] Id. at 193.

[15] Id. at 175-178.

[16] Id. at 199-202.

[17] Id. at 203-205.