I'm Giancarlo Enrico S. Pozon, a Wushu instructor, investor and Barrister... That's right, Barrister; I graduated from law school and took the Bar Exams, now I'm waiting for the results. I created this blog to make Philippine Law easy to understand for the average person. It's all about free legal advice. There are many law blogs. But the problem is that many of them are written for lawyers and law students. They use words that can't be understood by ordinary people.
Many lawyers, judges and law students consider themselves as superior to most human beings because of their knowledge of the law. It bothers me since the law is supposed to serve society. Since the law is meant to serve society as a whole, it is important that is must be understood by everybody.
This does not mean that we should all become lawyers. It means that although law is a highly specialized profession, the first duty of everybody in this profession is to make the law understandable to all; that's why all these articles are free legal advice.
Like I said, this blog is about law -but it's for the ordinary people, not the lawyers. It's for the ordinary folk so they will know what is good and bad for them, and that making them aware of the law will help us all improve society as a whole. This is free legal advice for everybody!
We already know that when you mortgage real estate, it's because you borrow money and put up some real property to guarantee that you pay your debt. The transaction is then registered. Now, here are some other things that you should know:
1.) In a foreclosure sale where the income is less than the amount in the debt, the mortgagee/creditor can sue the debtor/mortgagor to recover the remaining balance. If the income of the sale is more than the amount in the debt, the extra amount must be returned to the debtor/mortgagor.
2.) Even if the contract contains a provision that says the judicial foreclosure will be filed in another place if the debtor/mortgagor fails to pay, the property may be foreclosed extra-judicially and sold in the place where it is located in case of failure to pay.
3.) An extra-judicial foreclosure is valid if:
A.) Its notices are posted in at least three (3) public places and it is published in a generally circulated newspaper once a week for three (3) consecutive weeks.
B.) Even if there was no posting but there was publication, the foreclosure is valid because there is a greater chance the public will be informed of the foreclosure.
4.) An extra-judicial foreclosure is void if:
A.) It is postponed and the notice is waived by the mortgagor/debtor.
B.) Both forms of notices aren't made.
C.) If after the three (3) consecutive notices are published, the sale is postponed and later only one or two new notices are made.
5.) The redemption period of one (1) year isn't interrupted if the foreclosure sale is questioned in court.
6.) If the property is sold in a foreclosure sale, the buyer must ask the court to issue a writ of possession before he can take over the property. If he doesn't, the mortgagor/debtor can file an ejectment suit against him. A writ if possession can't be denied if there is an ongoing action to annul the foreclosure or the real estate mortgage. Applying for a writ doesn't need the presentation of evidence.
7.) If the property was also under a lease to another person at the time it was foreclosed, the mortgagee/creditor can still get a writ of possession even if the lease contract is still effective except if the contract was registered or if the mortgagee/creditor knew that there was a lease that was still in effect.
8.) If the mortgagor/debtor sold the property to someone else before it was mortgaged, the mortgagee/creditor can't ask for a writ of possession because it would be a constitutional denial of due process.
9.) If the mortgagor not only fails to redeem the property but also refuses to surrender the title certificate to the buyer in the foreclosure sale, the court can order the Register of Deeds to register the deed of sale so the buyer can consolidate his title.
5 comments:
Thanks! These are helpful but what's the law on real estate mortgage if it's to a private individual? My father entered and signed an agreement 12 years ago for the amount of Php100,000 to be paid in 6 months only with 5% interest per month. However, this was not paid within the agreed period. A total of Php280,000 was paid later on but they are still demanding that we pay the interest of 5% accrued ever since and threatens to file a case. Any advise that you give will be highly appreciated.
Pano pag ndi pa po tapos ung unit ko tapos nag umpisa nako magbayad ng monthly amortization,pwede ko ba ireklamo ung developer?kc nagbabayad pa kmi rent sa apartment,antagal nla gwin ung unit na kinuha ko
Pano pag ndi pa po tapos ung unit ko tapos nag umpisa nako magbayad ng monthly amortization,pwede ko ba ireklamo ung developer?kc nagbabayad pa kmi rent sa apartment,antagal nla gwin ung unit na kinuha ko
Pano pag ndi pa po tapos ung unit ko tapos nag umpisa nako magbayad ng monthly amortization,pwede ko ba ireklamo ung developer?kc nagbabayad pa kmi rent sa apartment,antagal nla gwin ung unit na kinuha ko
Pano pag ndi pa po tapos ung unit ko tapos nag umpisa nako magbayad ng monthly amortization,pwede ko ba ireklamo ung developer?kc nagbabayad pa kmi rent sa apartment,antagal nla gwin ung unit na kinuha ko
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