Sunday, February 05, 2012

PNB vs Nepomuceno Publications, G. R. No. 139479, December 27, 2002

Facts: Petitioner PNB granted respondents 4 million pesos of credit line to finance a movie project. The loan was secured by mortgages on respondents’ real and personal properties. Respondents defaulted in their obligation. Petitioner sought foreclosure of the mortgaged properties. The auction sale was re-scheduled several times without need of republication of the notice of sale.

Subsequently, the respondents filed an action for annulment of the foreclosure sale claiming that such was void because, among others, there was lack of publication of the notice of foreclosure sale.

The trail court ordered the annulment and set aside the foreclosure proceedings. Upon appeal, the CA affirmed the lower court.

Issue: Whether or not publication of foreclosure sale can be validly waived by agreement of the parties.

Held: Act. No. 3135, as amended, governing extrajudicial foreclosure of mortgages on real property is specific with regard to the posting and publication requirements of the notice of sale, to wit:

"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."

It is well settled that what Act No. 3135 requires is: (1) the posting of notices of sale in three public places; and, (2) the publication of the same in a newspaper of general circulation. Failure to publish the notice of sale constitutes a jurisdictional defect, which invalidates the sale.

Petitioner, however, insists that the posting and publication requirements can be dispensed with since the parties agreed in writing that the auction sale may proceed without need of re-publication and re-posting of the notice of sale.

The Supreme Court is not convinced. Petitioner and respondents have absolutely no right to waive the posting and publication requirements of Act No. 3135.

While it is established that rights may be waived, Article 6 of the Civil Code explicitly provides that such waiver is subject to the condition that it is not contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.

The principal object of a notice of sale in a foreclosure of mortgage is not so much to notify the mortgagor as to inform the public generally of the nature and condition of the property to be sold, and of the time, place, and terms of the sale. Notices are given to secure bidders and prevent a sacrifice of the property. Clearly, the statutory requirements of posting and publication are mandated, not for the mortgagor’s benefit, but for the public or third persons. In fact, personal notice to the mortgagor in extrajudicial foreclosure proceedings is not even necessary, unless stipulated. As such, it is imbued with public policy considerations and any waiver thereon would be inconsistent with the intent and letter of Act No. 3135.

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