Republic of the
Supreme Court
THIRD DIVISION
GUILLERMINA
BALUYUT, G.R. NO.
144435
Petitioner,
Present:
YNARES-SANTIAGO,
J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CALLEJO,
SR., and
CHICO-NAZARIO,
JJ.
EULOGIO
POBLETE, SALUD
POBLETE
and THE HON.COURT
OF
APPEALS, Promulgated:
Respondents. February 6, 2007
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D E C I S I O N
AUSTRIA-MARTINEZ,
J.:
Before the Court is a Petition for Review
on Certiorari under Rule 45 of the Rules of Court seeking to reverse the
Decision[1]
of the Court of Appeals (CA) dated
The facts of the case are as follows:
On P850,000.00. As evidence of her
indebtedness, Baluyut signed, on even date, a promissory note for the amount
borrowed[3].
Under the promissory note, the loan shall mature in one month. To secure the
payment of her obligation, she conveyed to the Poblete spouses, by way of a
real estate mortgage contract, a house and lot she owns, covered by Transfer
Certificate of Title (TCT) No. 137129 and located in Barrio Mapuntod, then Municipality
of Mandaluyong, Province of Rizal.[4]
Upon maturity of the loan, Baluyut failed to pay her indebtedness. The Poblete
spouses subsequently decided to extrajudicially foreclose the real estate
mortgage. On
Aggrieved by the trial court’s Decision, herein petitioner filed an appeal with the CA.
On
Petitioner filed a Motion for Reconsideration but the same
was denied in a Resolution issued by the CA on
Hence, the present petition with the following assignment of
errors:
I
The decision and the resolution are both palpably infirm in holding that no prior demand to pay is necessary for a loan to mature when there is conflict between the date of maturity of the loan as stated in the Deed of Real Estate Mortgage and the Promissory Note on the one hand and the real date of its maturity on the other.
II
The decision and the resolution are both palpably infirm in holding that the sheriff who conducted the foreclosure proceedings should be presumed to have regularly performed his duty in conducting the foreclosure proceedings despite the inability of the Office of the Provincial Sheriff who had been ordered by the trial court to produce the records of the foreclosure in question and show that there was compliance with the required posting of notices in three public places and with the required publication for three consecutive weeks in a newspaper of general circulation.
III
That the Decision and Resolution are legally infirm in holding that because the Petitioner-Appellant failed to invoke her right to be sent an Assessment Notice by the highest bidder thirty days before the expiration of the right of legal redemption during the trial and on appeal, it should be deemed that she had waived her right to this benefit under the law despite a clear showing that the said mandatory requirement should have been strictly observed before title could be consolidated in favor of the highest bidder as provided for in the certificate of sale issued by the sheriff.[11]
As to her third assigned error, petitioner asserts that despite the fact that she is entitled under the law to an Assessment Notice or Notice of Redemption coming from the highest bidder 30 days before the expiration of the period to redeem apprising her of the principal amount, the interest, taxes and other lawful fees due in case she opts to exercise her right of redemption, she did not receive any notice of this kind. Petitioner contends that her right to this notice is not subject to waiver and that her failure to invoke the same during trial and on appeal does not preclude her from invoking such right in her motion for reconsideration filed with the CA and in the present petition.
In their Motion to Dismiss, which the Court treated as their comment on the petition, private respondents contend that the petition should be dismissed on the ground that no question of law was raised therein. Private respondents argue that the issue as to the supposed conflict between the date of maturity of the loan as stated in the Deed of Real Estate Mortgage and the Promissory Note, on one hand, and the real date of maturity as agreed upon by the parties, on the other, as well as the question of whether or not the sheriff who conducted the foreclosure proceedings involving the subject property complied with the legal requirements of posting and publication are questions of fact which are not proper subjects of a petition for review on certiorari. Furthermore, private respondents also assert in their Memorandum that the questions of fact being raised by petitioner had already been ruled upon by the RTC and the CA in favor of private respondents; that the findings of fact of the RTC and the CA are binding on this Court.
The Court finds the petition without merit.
Petitioner admits that the issue regarding the date of maturity of the loan which she incurred from the Poblete spouses was first brought up only in her Addendum to the Motion for Reconsideration filed before the CA. In an effort to clothe her argument with merit, petitioner contends that the CA should have properly considered this issue in the interest of justice and equity. The Court is not persuaded. It is settled that an issue not raised during trial could not be raised for the first time on appeal as to do so would be offensive to the basic rules of fair play, justice, and due process.[12] Contrary to petitioner’s contention, it would be the height of injustice if the CA allowed her to raise an issue at a very late stage of the proceedings. It would be unfair to the adverse party who would have no opportunity to present evidence in contra to the new theory, which it could have done had it been aware of it at the time of the hearing before the trial court.[13] It is true that this rule admits of exceptions as in cases of lack of jurisdiction, where the lower court committed plain error, where there are jurisprudential developments affecting the issues, or when the issues raised present a matter of public policy.[14] However, the Court finds that none of these exceptions are present in the instant case.
In addition, the issue regarding the date of maturity of the loan is factual and settled is the rule that only questions of law may be raised in a petition for review on certiorari under Rule 45 of the Rules of Court, as the Supreme Court is not a trier of facts.[15] It is not the function of this Court to review, examine and evaluate or weigh the probative value of the evidence presented.[16] While there are also exceptions to this rule such as when the factual findings of the trial court and the CA are contradictory; when the inference made by the CA is manifestly mistaken or absurd; when the judgment of the CA is premised on its misapprehension of facts; and, when the CA failed to resolve relevant facts which, if properly considered, would justify a modification or reversal of the decision of the appellate court,[17] this Court finds that the present case does not fall under any of these exceptions.
Even if petitioner had properly
raised the issue regarding the real date of maturity of the loan, it is a
long-held cardinal rule that when the terms of an agreement are reduced to
writing, it is deemed to contain all the terms agreed upon and no evidence of
such terms can be admitted other than the contents of the agreement itself.[18]
In the present case, the promissory note and the real estate mortgage are the
law between petitioner and private respondents. It is not disputed that under
the Promissory Note dated
Petitioner makes much of the
testimony of Atty. Edwina Mendoza that the maturity of the loan which
petitioner incurred is one year. However, evidence of a prior or
contemporaneous verbal agreement is generally not admissible to vary, contradict
or defeat the operation of a valid contract.[19]
While parol evidence is admissible to explain the meaning of written contracts,
it cannot serve the purpose of incorporating into the contract additional
contemporaneous conditions which are not mentioned at all in writing, unless
there has been fraud or mistake.[20]
In the instant case, aside from the testimony of Atty. Mendoza, no other
evidence was presented to prove that the real date of maturity of the loan is
one year. In fact there was not even any allegation in the Complaint and in the
Memorandum filed by petitioner with the trial court to the effect that there
has been fraud or mistake as to the date of the loan’s maturity as contained in
the Promissory Note of
Moreover, during her cross-examination, petitioner herself never claimed that the loan shall mature in one year despite being questioned regarding its maturity. She testified thus:
Q You said that you borrowed P850,000.00 to [sic] Mrs.
Poblete, is that correct?
A Yes sir.
Q In fact, you signed a Real Estate Mortgage marked as Exhibit
“B”?
A Yes sir.
Q When you signed this Deed of Real Estate Mortgage, you also
signed a Promisory [sic] Note, is that correct?
RECORD: Witness did not answer.
Q Did you sign or not a Promisory [sic] note in relation to
this Real Estate Mortgage.
A I don’t remember sir.’
Q You don’t remember. I am showing to you a Promisory Note
with your signature, did you not sign this dated
A Yes sir.
Q Now, according to this Promisory [sic] Note, the loan is for
one (1) month from
A I did not sir.
Q Up to now, you have not paid that loan?
A I have not sir.
Q What happen [sic] to the mortgage when you did not paid [sic]
that loan from one (1) month after
A None sir.[21]
In sum, petitioner failed to present clear and convincing evidence to prove her allegation that the real agreement of the parties is for the loan to mature in one year.
As to the second assigned error, the prevailing jurisprudence is that foreclosure proceedings have in their favor the presumption of regularity and the burden of evidence to rebut the same is on the petitioner.[22] Moreover, the Court agrees with the CA that a mortgagor who alleges absence of a requisite has the burden of establishing that fact.[23] Petitioner failed in this respect as she did not present any evidence to prove her allegations.
Moreover, the fact that the records of the foreclosure proceedings involving the subject property could not be found does not necessarily mean that the legal requirements of posting and publication had not been complied with. Private respondents were able to present the Affidavit of Publication[24] executed by the publisher of Nuevo Horizonte, a newspaper of general circulation, together with a clipping[25] of the published notice attached thereto, to prove that notices of the sale of the subject property were validly published in accordance with law. The affidavit of publication executed by the publisher of a newspaper stating therein that said newspaper is of general circulation and that the requisite notice of foreclosure sale was published in said paper in accordance with law constitutes prima facie evidence of compliance with the required publication.[26]
As to the alleged lack of posting of the notices of sale in at least three public places, herein petitioner failed to discharge her burden of proving by convincing evidence her allegation that there was actually no compliance with the posting requirement. Hence, in the absence of contrary evidence, the presumption prevails that the sheriff performed his official duty of posting the notices of sale.[27]
The Court’s ruling in Olizon v. Court of Appeals,[28] insofar as posting and publication requirements in mortgage foreclosure sales are concerned, is instructive:
We take judicial notice of the fact that newspaper
publications have more far-reaching effects than posting on bulletin boards in
public places. There is a greater probability that an announcement or notice
published in a newspaper of general circulation, which is distributed
nationwide, shall have a readership of more people than that posted in a public
bulletin board, no matter how strategic its location may be, which caters only
to a limited few. Hence, the publication of the notice of sale in [a]
newspaper of general circulation alone is more than sufficient compliance with
the notice-posting requirement of the law. By such publication, a
reasonably wide publicity had been effected such that those interested might
attend the public sale, and the purpose of the law had been thereby subserved.
The object of a notice of sale is to inform the public
of the nature and condition of the property to be sold, and of the time, place
and terms of the sale. Notices are given for the purpose of securing bidders
and to prevent a sacrifice of the property. If these objects are attained,
immaterial errors and mistakes will not affect the sufficiency of the notice;
but if mistakes or omissions occur in the notices of sale, which are calculated
to deter or mislead bidders, to depreciate the value of the property, or to
prevent it from bringing a fair price, such mistakes or omissions will be fatal
to the validity of the notice, and also to the sale made pursuant thereto.
In the instant case, the aforesaid objective was
attained since there was sufficient publicity of the sale through the newspaper
publication. There is completely no showing that the property was sold for a
price far below its value as to insinuate any bad faith, nor was there any
showing or even an intimation of collusion between the sheriff who conducted
the sale and respondent bank. This being so, the alleged non-compliance with
the posting requirement, even if true, will not justify the setting aside of
the sale.[29]
In the present case, there was sufficient evidence to prove that notices of the foreclosure sale of the subject property were published in accordance with law and that there was no allegation, much less proof, that the property was sold for a price which is considerably lower than its value as to show collusion between the sheriff and herein private respondents. Hence, even granting that the sheriff failed to post the notices of foreclosure in at least three public places, such failure, pursuant to Olizon, is not a sufficient basis in nullifying the auction sale and the subsequent issuance of title in favor of private respondents.
As to petitioner’s argument that the sheriff in charge of the auction sale is required to execute an affidavit of posting of notices, the Court agrees with private respondents’ contention that petitioner’s reliance on the provisions of Section 5, Republic Act (R.A.) No. 720, as amended by R.A. No. 5939[30], as well as on the cases of Roxas v. Court of Appeals,[31] Pulido v. Court of Appeals[32] and Tambunting v. Court of Appeals,[33] is misplaced as the said provision of law refers specifically and exclusively to the foreclosure of mortgages covering loans granted by rural banks. In the present case, the contracts of loan and mortgage are between private individuals. The governing law, insofar as the extrajudicial foreclosure proceedings are concerned, is Act No. 3135, as amended by Act No. 4118.[34] Section 3 of the said law reads as follows:
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.
Unlike in the amended provisions of Section 5, R.A. No. 720, nowhere in the above-quoted provision of Act No. 3135, as amended, or in any Section thereof, is it required that the sheriff must execute an affidavit to prove that he published notices of foreclosure in accordance with the requirements of law.
As to the last assigned error, suffice it to say that the Court agrees with the findings of the CA that the issue regarding petitioner’s right to receive an Assessment Notice or Notice of Redemption from private respondents as the highest bidders during the auction sale was raised only in her Addendum to Motion for Reconsideration of the Decision of the CA. The Court reiterates the rule that points of law, theories, issues and arguments not brought to the attention of the lower court need not be, and ordinarily will not be, considered by a reviewing court, as these cannot be raised for the first time on appeal.[35]
Moreover, like the issue regarding the date of maturity of the loan, the question of whether or not petitioner received a copy of an Assessment Notice or Notice of Redemption from private respondents is also factual. As earlier explained, questions of fact are not proper subjects of appeal by certiorari under Rule 45 of the Rules of Court as this mode of appeal is confined to questions of law.[36]
Besides, there is nothing under Act No. 3135 which requires the highest bidder or purchaser to furnish the mortgagor or redemptioner an Assessment Notice or Notice of Redemption prior to the expiration of the period of redemption. Even the pertinent provisions of Section 30, Rule 39[37] of the old Rules of Court, which are the rules applicable in the present case, do not require that the mortgagor or redemptioner be furnished by the purchaser notice of any assessments or taxes which the latter may have paid after the purchase of the auctioned property, thus:
Sec. 30. Time and manner of, and amounts payable
on, successive redemptions, notice to be given and filed. – The judgment
debtor or redemptioner may redeem the property from the purchaser at any time
within twelve (12) months after the sale, on paying the purchaser the amount of
his purchase with one per centum per month interest thereon in
addition, up to the time of redemption, together with the amount of any
assessments or taxes which the purchaser may have paid thereon after purchase
and interest on such last named amount at the same rate; and if the purchaser
be also a creditor having a prior lien to that of the redemptioner, other than
the judgment under which such purchase was made, and the amount of such other
lien, with interest. Property so redeemed may again be redeemed within sixty
(60) days after the last redemption upon payment of the sum paid on the last
redemption, with two per centum thereon in addition, and the
amount of any assessments or taxes which the last redemptioner may have paid
thereon after redemption by him, with interest of such last-named amount, and
in addition, the amount of any liens held by said last redemptioner prior to
his own, with interest. The property may be again, and as often as a
redemptioner is so disposed, redeemed from any previous redemptioner within
sixty (60) days after the last redemption, on paying the sum paid on the last
previous redemption, with two per centum thereon in addition, and
the amounts of any assessments or taxes which the last previous redemptioner
paid after the redemption thereon, with interest thereon, and the amount of any
liens held by the last redemptioner prior to his own, with interest.
Written notice of any redemption must be given to the
officer who made the sale and a duplicate filed with the Registrar of Deeds of
the province, and if any assessment of taxes are paid by the redemptioner or if
he has or acquires any lien other than that upon which the redemption was made,
notice thereof must in like manner be given to the officer and filed with the
Registrar of Deeds; if such notice be not filed, the property may be redeemed
without paying such assessments, taxes, or liens. (emphasis supplied)
Hence, even granting, for the sake of argument, that private respondents failed to comply with the directive in the Certificate of Sale issued by the Ex-Officio Provincial Sheriff of Rizal and the Deputy Sheriff In-Charge by giving a copy of statements of the amount of assessments or taxes which they may have paid on account of the purchase of the subject property, such failure would not invalidate the auction sale and the subsequent transfer of title over the subject property in their favor.
It bears to note that the purpose for requiring the purchaser to furnish copies of the amounts of assessments or taxes which he may have paid is to inform the mortgagor or redemptioner of the actual amount which he should pay in case he chooses to exercise his right of redemption. If no such notice is given, the only effect is that the property may be redeemed without paying such assessments or taxes.[38] In fact, it would have been beneficial on the part of herein petitioner if private respondents failed to submit to the office of the sheriff and furnish her a copy of the statements of the taxes and assessments they paid because in such a case petitioner would have been excused from reimbursing such assessments and taxes if she redeemed the property. The fact remains, however, that petitioner failed to redeem the subject property.
WHEREFORE, the instant petition is DENIED and the assailed Decision and Resolution of the Court of Appeals are AFFIRMED in toto.
Costs against petitioner.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate
Justice
WE CONCUR:
CONSUELO
YNARES-SANTIAGO
Associate Justice
Chairperson
ROMEO
J. CALLEJO, SR. MINITA V.
CHICO-NAZARIO
Associate Justice Associate Justice
ATTESTATION
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.
CONSUELO
YNARES-SANTIAGO
Associate Justice
Chairperson, Third 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, it is hereby
certified 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.
REYNATO S. PUNO
Chief Justice
[1] Penned by Justice Mercedes Gozo-Dadole (now retired) and concurred in by Justices Eubulo G. Verzola (now deceased) and Artemio G. Tuquero (now retired).
[2] Penned by Justice Rodrigo V. Cosico and concurred in by Justices Godardo A. Jacinto (now retired) and Remedios Salazar-Fernando.
[3] Records, p. 327.
[4] Exhibit “A”, id. at 28. The
property is now considered part of
[5] Exhibit “B”, id. at 30.
[6] Exhibit “C”, id. at 31.
[7] Exhibit “D”, id. at 34.
[8]
[9] CA rollo, pp. 97-109.
[10]
[11] Rollo, pp. 13-14.
[12] Twin Towers Condominium Corporation v. Court of Appeals, 446 Phil. 280, 303 (2003).
[13] Ulep v. Court of Appeals,
G.R. No. 125254,
[14]
[15] Permanent Savings and Loan Bank
v. Velarde, G.R. No. 140608,
[16]
[17] Cabotaje v. Pudunan, G.R. No.
134712,
[18] Spouses Sabio v. The International Corporate Bank, Inc., 416 Phil. 785, 807 (2001).
[19] Lapulapu Foundation, Inc. v. Court of Appeals, G.R. No. 126006, January 29, 2004, 421 SCRA 328, 336.
[20]
[21] TSN,
[22]
[23]
[24] Exhibit “F”, records, p. 37.
[25] Exhibit “F-1”, id.
[26] Fortune Motors (Phils.) Inc. v. Metropolitan
Bank and Trust Co., 332 Phil 844, 849 (1996), citing Bonnevie
v. Court of Appeals, G.R. No.
L-49101,
[27] Development Bank of the
[28] G.R. No. 107075,
[29]
[30] An Act Providing for the Creation, Organization and Operation of Rural Banks, and for other purposes.
[31] G.R. No. 100480,
[32] G.R. No. 109244,
[33] G.R. No. L-48278,
[34] An Act To Regulate The
[35] Ulep v. Court of Appeals, supra note 13.
[36] Goyena v. Ledesma-Gustilo, 443 Phil. 150, 158 (2003).
[37] Now Section 28, Rule 39 of the Rules of Court, as amended.
[38] Spouses Estanislao, Jr. v. Court of Appeals, 414 Phil. 509, 519 (2001).