SECOND DIVISION
[G.R. No. 204130. March 4, 2013.]
SPOUSES FRANCISCO CABARON, JR. and FLORA CABARON, petitioners, vs. BANCO DE ORO UNIVERSAL BANK, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated 04 March 2013 which reads as follows:
G.R. No. 204130 — (SPOUSES FRANCISCO CABARON, JR. and FLORA CABARON, petitioners, v. BANCO DE ORO UNIVERSAL BANK, respondent). — Before us is a petition for review on certiorari, 1 under Rule 45 of the Rules of Court, assailing the decision 2 dated March 21, 2012 and the resolution 3 dated September 25, 2012 of the Court of Appeals (CA) in CA-G.R. CV No. 03150. The challenged rulings denied the petition for review, under Rule 43 of the Rules of Court, for lack of merit.
Petitioner spouses Francisco and Flora Cabaron (spouses) executed a special power of attorney allowing Samuel Cabaron to mortgage their real property with any banking or financial institution as security for their company's (CABCO Realty, Inc.) loan. Samuel obtained the loan from respondent Banco de Oro Universal Bank (BDO) for P5,000,000.00.
After the first loan was settled, BDO extended another loan of P3,500,000.00 to Samuel and CABCO Realty, Inc. The second loan was not paid and BDO foreclosed on the mortgage. In 1999, the property was awarded to BDO, being the highest bidder in the public auction. The spouses sent several letters to BDO with offers ranging from P500,000.00 to P1,900,000.00, asking if they could redeem the foreclosed property. BDO did not reply. HSTCcD
In December 2004, the spouses filed a complaint for annulment of real estate mortgage and foreclosure against BDO. They prayed that the mortgage be declared null and void or, in the alternative, if the mortgage is valid, then they be allowed to redeem the property.
The RTC Ruling
The Regional Trial Court (RTC), Cebu City, Branch 10, dismissed the complaint for lack of merit. 4 Citing the doctrines in Perez v. Court of Appeals 5 and Aclon v. Court of Appeals, 6 it held that when the spouses asked to redeem the property, they were estopped from assailing the validity of the mortgage and foreclosure proceedings. The RTC also upheld the validity of the real estate mortgage and the subsequent foreclosure proceedings.
The CA Ruling
The spouses elevated the case to the CA, but the CA denied the appeal for lack of merit and affirmed the decision of the RTC. It held that the mortgage contracts entered into are valid and that the spouses are estopped from impugning the validity of the mortgage and of the sale.
In this petition, the spouses submit that the CA committed a reversible error in ruling that their alternative prayer, to be allowed to redeem their property, is a bar to their principal prayer for the annulment of the mortgage.
Our Ruling
The spouses can raise redemption as
Section 2, Rule 8 of the Revised Rules of Court allows a party to set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. The 5th cause of action in their complaint states: "in the remote possibility . . . that the foreclosure of the subject property will be held valid, [the spouses] are entitled to the redemption[.]" 7Hence, they are not estopped from raising an alternative claim. AHEDaI
The doctrine relied upon by the RTC and by the CA was made in contexts different from what exists in this case. In the case of Perez v. Court of Appeals, 8 the plaintiff instituted two actions with the RTC, one for redemption and another for annulment of mortgage. In the case of Aclon v. Court of Appeals, 9 the action for nullity of mortgage was filed five years after Aclon failed to redeem his property through his own fault and negligence. In light of these different factual/case settings, the cited doctrine is not applicable in this case.
However, the dismissal of the spouses' complaint is still proper. Since BDO foreclosed the mortgage extrajudicially, the spouses have one year from the registration date of the certificate of sale to redeem the property. 10 The certificate was registered on August 2, 2001, 11 but as of July 30, 2004, the spouses were still sending letters-offers to BDO asking to redeem their property for an amount lower than the redemption price. 12 For a valid redemption, the spouses should make an actual tender in good faith of the full amount of the purchase price, i.e., (1) the amount fixed by the court in the order of execution or the amount due under the mortgage deed with interest thereon at the rate specified in the mortgage; and (2) all the costs, and the judicial and other expenses incurred by the bank or institution concerned by reason of the execution, sale, custody of the property, less the income received from the property. 13 No valid offer was ever made. Thus, the spouses failed to redeem the property within the redemption period.
WHEREFORE, the petition is DENIED. The decision dated March 21, 2012 and the resolution dated September 25, 2012 of the Court of Appeals in CA-G.R. CV No. 03150 are hereby AFFIRMED.
SO ORDERED.
Very truly yours,
(SGD.) MA. LOURDES C. PERFECTODivision Clerk of Court
Footnotes
1.Rollo, pp. 9-31.
2.Id. at 34-44. Penned by Justice Ramon Paul L. Hernando, and concurred in by Justices Pampio A. Abarintos and Victoria Isabel A. Paredes.
3.Id. at 45.
4.Id. at 91-101.
5.502 Phil. 346 (2005).
6.436 Phil. 219 (2002).
7.Rollo, p. 58.
8.Supra note 5.
9.Supra note 6.
10.Section 47 of Republic Act No. 8791, otherwise known as "The General Banking Law of 2000."
11.Rollo, p. 78.
12.Id. at 53.
13.Heirs of Norberto J. Quisimbing n v. Philippine National Bank, G.R. No. 178242, January 20, 2009, 576 SCRA 762, 772.
n Note from the Publisher: Copied verbatim from the official copy. "Quisimbing" should read as "Quisumbing".