April 2010 - Philippine Supreme Court Resolutions
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[G.R. No. 171627 : April 28, 2010] EMILIO ZUÑIGA, REPRESENTED BY ATTORNEY-IN-FACT BERNADETTE LEYVA V. TOWN SAVINGS AND LOAN BANK:
[G.R. No. 171627 : April 28, 2010]
EMILIO ZUÑIGA, REPRESENTED BY ATTORNEY-IN-FACT BERNADETTE LEYVA V. TOWN SAVINGS AND LOAN BANK
Sirs/Mesdames:
Quoted hereunder, for your information, is a resolution of this Court dated 28 April 2010:
G.R. No. 171627 - (Emilio Zu�iga, represented by attorney-in-fact Bernadette Leyva v. Town Savings and Loan Bank)
This resolves the petition for review of the Decision[1] of the Court of Appeals affirming a lower court's order for the issuance of a writ of possession over a foreclosed property.
Petitioner Emilio Zu�iga (petitioner), debtor of respondent Town Savings and Loan Bank (respondent), mortgaged to respondent a parcel of land in Montalban,[2] Rizal (Property) to secure his loan.[3] When petitioner defaulted on his loan payments, respondent sought the foreclosure of the mortgage by filing with the sheriff of San Mateo, Rizal a petition for extrajudicial foreclosure. Notices of the foreclosure sale, scheduled on 26 October 1994, were published consecutively for three weeks in Pilipino Newsline and posted in three public places.[4] Respondent bought the Property as the highest bidder.
Shortly before the redemption period expired, respondent filed with the Regional Trial Court of San Mateo, Rizal (trial court) a petition for the issuance of a writ of possession over the Property.[5] Among the evidence respondent submitted with its petition was the certificate of publication of the Pilipino Newsline's publisher. The trial court granted the petition and issued the writ of possession. However, this writ was not immediately served and its substitute was returned unsatisfied. In January 1998, respondent sought the issuance of a second alias writ of possession which petitioner opposed, contending that the foreclosure sale was void for defective publication and posting. The trial court initially ordered[6] the issuance of the second writ of possession without ruling on petitioner's objection. However, on remand following an appellate directive to rule on petitioner's opposition,[7] the trial court issued another ruling[8] holding that there was regular publication and posting of the notices of foreclosure and reiterating its order for the issuance of a second alias writ of possession.
On appeal, the Court of Appeals affirmed the trial court.[9]
Hence, this appeal.
We deny the petition.[10]
Petitioner has narrowed his appeal to the sole issue of the regularity of publication of the notices of the foreclosure sale. Petitioner rehashes his argument, rejected by the trial court and the Court of Appeals, that the notices of foreclosure sale were defectively published for lack of proof that Pilipino Newsline is a newspaper of general circulation in Montalban, Rizal. Petitioner insists that the lower courts should have given weight to the testimonies of his two witnesses, newspaper distributors in Montalban, that Pilipino Newsline is not circulated in that area.
We are no more convinced than the lower courts. We sustain the Court of Appeals' rejection of petitioner's argument:
Indeed, the attestation of the Pilipino Newsline's publisher that it is a "weekly newspaper, published and circulated in the Philippines" means that it is published for the dissemination of local news and information; it has a bona fide subscription list of paying subscribers; and it is published at weekly intervals.[12] That two newspaper distributors are not familiar with a news outfit publishing notices of foreclosure is no reason to conclude that the newspaper is not circulated in a locality, considering that some subscriptions are coursed through the mail and especially if one of the dealers, as here, covers only 5% of the market.[13]
On petitioner's contention that the affidavit of publication of Pilipino Newsline's publisher is inadmissible for not having been offered in evidence, suffice it to say that the document already formed part of the evidence on record with the trial court, having been submitted to support respondent's petition for the issuance of the writ of possession an ex parte proceeding. Indeed, the trial court found the petition in order thus it issued the original and first alias writs of possession. Petitioner's subsequent entry in the proceedings to oppose the issuance of the second alias writ of possession does not change the nature of the proceedings or convert all the evidence on record as hearsay for not having been offered in a full-blown trial. At any rate, the finding of the trial court that Pilipino Newsline was among the news publications accredited by the Office of the Clerk of Court of the Regional Trial Court of San Mateo, Rizal to publish notices in that judicial district stands uncontroverted.
WHEREFORE, we resolved to DENY the petition.
SO ORDERED.
WITNESS the Honorable Antonio T. Carpio, Chairperson, Honorable Arturo D. Brion, Mariano C. Del Castillo, Roberto A. Abad and Jose P. Perez, Members, Second Division, this 28th day of April, 2010.
G.R. No. 171627 - (Emilio Zu�iga, represented by attorney-in-fact Bernadette Leyva v. Town Savings and Loan Bank)
This resolves the petition for review of the Decision[1] of the Court of Appeals affirming a lower court's order for the issuance of a writ of possession over a foreclosed property.
Petitioner Emilio Zu�iga (petitioner), debtor of respondent Town Savings and Loan Bank (respondent), mortgaged to respondent a parcel of land in Montalban,[2] Rizal (Property) to secure his loan.[3] When petitioner defaulted on his loan payments, respondent sought the foreclosure of the mortgage by filing with the sheriff of San Mateo, Rizal a petition for extrajudicial foreclosure. Notices of the foreclosure sale, scheduled on 26 October 1994, were published consecutively for three weeks in Pilipino Newsline and posted in three public places.[4] Respondent bought the Property as the highest bidder.
Shortly before the redemption period expired, respondent filed with the Regional Trial Court of San Mateo, Rizal (trial court) a petition for the issuance of a writ of possession over the Property.[5] Among the evidence respondent submitted with its petition was the certificate of publication of the Pilipino Newsline's publisher. The trial court granted the petition and issued the writ of possession. However, this writ was not immediately served and its substitute was returned unsatisfied. In January 1998, respondent sought the issuance of a second alias writ of possession which petitioner opposed, contending that the foreclosure sale was void for defective publication and posting. The trial court initially ordered[6] the issuance of the second writ of possession without ruling on petitioner's objection. However, on remand following an appellate directive to rule on petitioner's opposition,[7] the trial court issued another ruling[8] holding that there was regular publication and posting of the notices of foreclosure and reiterating its order for the issuance of a second alias writ of possession.
On appeal, the Court of Appeals affirmed the trial court.[9]
Hence, this appeal.
We deny the petition.[10]
Petitioner has narrowed his appeal to the sole issue of the regularity of publication of the notices of the foreclosure sale. Petitioner rehashes his argument, rejected by the trial court and the Court of Appeals, that the notices of foreclosure sale were defectively published for lack of proof that Pilipino Newsline is a newspaper of general circulation in Montalban, Rizal. Petitioner insists that the lower courts should have given weight to the testimonies of his two witnesses, newspaper distributors in Montalban, that Pilipino Newsline is not circulated in that area.
We are no more convinced than the lower courts. We sustain the Court of Appeals' rejection of petitioner's argument:
[T]he argument that the publication of the notice[s] was not in accordance with law as the Pilipino Newsline is not of general circulation, is without merit. The testimonies of Zu�iga's witnesses that the newspaper is not being sold in the municipality, do not at all convince that it is not being put in circulation to the public. The publisher of the Pilipino Newsline already stated in [her] Affidavit of Publication that said newspaper is "a weekly newspaper, published and circulated in the Philippines" x x x. Besides, the court a quo has correspondingly declared that "As early as February 16, 1993, Pilipino Newsline was among the x x x newspaper[s] accredited by the Office of the Clerk of Court of this Judicial District."[11] x x x x (Emphasis in the original)
Indeed, the attestation of the Pilipino Newsline's publisher that it is a "weekly newspaper, published and circulated in the Philippines" means that it is published for the dissemination of local news and information; it has a bona fide subscription list of paying subscribers; and it is published at weekly intervals.[12] That two newspaper distributors are not familiar with a news outfit publishing notices of foreclosure is no reason to conclude that the newspaper is not circulated in a locality, considering that some subscriptions are coursed through the mail and especially if one of the dealers, as here, covers only 5% of the market.[13]
On petitioner's contention that the affidavit of publication of Pilipino Newsline's publisher is inadmissible for not having been offered in evidence, suffice it to say that the document already formed part of the evidence on record with the trial court, having been submitted to support respondent's petition for the issuance of the writ of possession an ex parte proceeding. Indeed, the trial court found the petition in order thus it issued the original and first alias writs of possession. Petitioner's subsequent entry in the proceedings to oppose the issuance of the second alias writ of possession does not change the nature of the proceedings or convert all the evidence on record as hearsay for not having been offered in a full-blown trial. At any rate, the finding of the trial court that Pilipino Newsline was among the news publications accredited by the Office of the Clerk of Court of the Regional Trial Court of San Mateo, Rizal to publish notices in that judicial district stands uncontroverted.
WHEREFORE, we resolved to DENY the petition.
SO ORDERED.
WITNESS the Honorable Antonio T. Carpio, Chairperson, Honorable Arturo D. Brion, Mariano C. Del Castillo, Roberto A. Abad and Jose P. Perez, Members, Second Division, this 28th day of April, 2010.
Very truly yours,
(Sgd.) MA. LUISA L. LAUREA
Clerk of Court
(Sgd.) MA. LUISA L. LAUREA
Clerk of Court
Endnotes:
[1] Dated 21 February 2006 and penned by Associate Justice Roberto A. Barrios with Associate Justices Mariano L. Guari�a III and Santiago Javier Ranada. concurring.
[2] Later renamed Rodriguez.
[3] Measuring 4,772 square meters and covered by Transfer Certificate of Title No. N-4787.
[4] Following Section 3, Act. No. 3135, as amended, which provides: "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."
[5] Docketed as LRC No. R-328, raffled to Branch 76
[6] In the Order dated 1 September 1999.
[7] In CA-G.R. SP No. 5939 of the Special Ninth Division of the Court of Appeals.
[8] Order dated 8 December 2004.
[9] In its Decision dated 21 February 2006 in CA-G.R. CV No 84218.
[10] The petition was initially denied by the Third Decision in the Resolution of 6 September 2006 for lack of showing of reversible error but, on petitioner's motion, was reinstated in the Resolution of 29 November 2006.
[11] Rollo, p. 24.
[12] See Bonnevie v. Court of Appeals, 210 Phil. 100 (1983).
[13] Rollo, p. 37.
