ChanRobles Virtual law Library

SECOND DIVISION

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated NOV 9 2005 .

OCA I.P.I. No. 04-2068-P ( Carmelita P. Tabag vs. Clerk of Court VI Shalane G. Palomar and Sheriff IV Julius G. Guiang, Sr .)

R E S O L U T I O N

Before us is a Motion for Reconsideration ^[1] of our April 27, 2005 Resolution ^[2] which dismissed the complaint against respondents Clerk of Court VI Shalane Palomar and Sheriff IV Julius Guiang, Sr., for violation of Secs. 3(a)(e) and (f) of Republic Act No. 3019 (R.A. No. 3019). ^[3]

In a Complaint Affidavit dated October 4, 2004 , mortgagor Carmelita P. Tabag charged respondents of wrongfully ordering and carrying out the extrajudicial foreclosure of her house and lot which was not authorized under the Real Estate Mortage executed by her and Francisca Mananghaya and despite her timely letter asking herein respondents to desist and withdraw from the intended extrajudicial sale. She claims that her house which was worth P300,000.00 was foreclosed even though her remaining debt to Mananghaya is less than P100,000.00. ^[4]

In her letter-comment, Palomar explained that, as ex-officio sheriff, she complied with proper procedure and that the Real Estate Mortgage itself signed by complainant and Mananghaya authorized such action. ^[5] Sheriff Guiang in his letter-comment also argued that he followed proper procedure. ^[6]

On March 3, 2005 , the Office of the Court Administrator (OCA) submitted its report and recommendation, pertinent portion of which states:

It is evident from the records that the respondents were able to comply with the requirements prescribed by the law before they foreclosed and auctioned the subject property of the complainant. Appropriate filing fees were paid and sufficient notices were served to the applicant mortgagee as well as the herein complainant. Also, there was no court order that will effectively restrain the respondents from proceeding with the foreclosure and auction of the property. Thus, it can be said that when the respondents carried out the extra-judicial sale of the complainant's property on 1 October 2004 , they were acting within the bounds of the law and were only performing their bounden duties as Ex-Officio Provincial Sheriff and impending Sheriff.

In the absence of evidence to the contrary, the presumption of regularity in the performance of duty remains in favor of the respondents.

RECOMMENDATION : Respectfully submitted for the consideration of the Honorable Court is our recommendation that the instant administrative complaint against respondents Clerk of Court VI Shalane G. Palomar and Sheriff IV Julius G. Guiang, Sr. be DISMISSED for lack of merit. ^[7]

On April 27, 2005 , the Court issued a Resolution adopting the recommendation of the OCA. ^[8]

Complainant filed a Motion for Reconsideration reiterating that: her mortgage does not authorize extrajudicial foreclosure but only judicial foreclosure with proper accounting; herein respondents conspired with mortgagee to the prejudice of complainant; and she was able to obtain a loan from a bank but needed the title of the property which Mananghaya refused to give. ^[9]

She prays that the Resolution of this Court dated April 27, 2005 be set aside; that respondents be found liable for violating R.A. No. 3019; and that the extrajudicial foreclosure sale made by respondents be declared null and void. ^[10]

On July 4, 2005 , the Court required the respondents to file their Comment. ^[11]

In their Joint Comment, respondents aver that: the allegation that they acted in conspiracy with the mortgagee and her counsel is totally untrue, baseless and malicious; they merely performed their duties in carrying out the sale at public auction; they acted within the bounds of law to ensure that their actions would not in any way favor anyone or grant any benefit, advantage or preference to any party; they have not spoken with the mortgagee or her counsel in relation to the foreclosure proceedings; the procedure set forth by law was complied with; even assuming that extrajudicial foreclosure was not authorized under the mortgage contract, such interpretation cannot be left solely to the discretion of respondents who are not privy to the contract and not vested with the power to do so; prior to complainant's request for withdrawal of the extrajudicial auction sale, the sale at public auction has already been scheduled and notices to such effect had already been posted and published in accordance with law; to grant the request of suspending the sale is tantamount to saying that indeed extrajudicial foreclosure was not authorized in the subject mortgage contract and that the filing of the petition was utilized purposely to hide the actual debt of the mortgagor which matters should be resolved in court; suspending the auction sale would also be giving undue preference to herein complainant; proceeding with the auction sale, meanwhile, there being no Order from the court enjoining the respondents, is performing one's duties and responsibilities which is incumbent upon respondents; if indeed such authority to extrajudicially foreclose the property was not incorporated in the mortgage contract, complainant through counsel should have filed an appropriate action to ventilate their claims and move that the respondents be enjoined from proceeding with the sale; it would also be an opportunity for the complainant to raise other matters, such as bloated interest and the refusal of the mortgagee to deliver the title despite payments, which cannot be the subject of the administrative complaint filed against the respondents. ^[12]

We deny the motion for reconsideration.

The contentious portion of the mortgage agreement reads:

PROVIDED, HOWEVER, that if, I the said CARMELITA PUNZALAN-TABAG shall pay or cause to be paid to said FRANCISCA MANANGHAYA, his (sic) heirs or assigns, the said sum of ONE HUNDRED TEN THOUSAND (PhP 110,000.00) PESOS, within the period of two years from and after the execution of this MORTGAGE together with the interest thereon at the rate of 3.5% per month, then this mortgage shall be discharged and of no effect; OTHERWISE, it shall remain in full force and effect and shall be enforceable in the manner provided by LAW . ^[13] (emphasis supplied)

Complainant argues that respondents should be administratively disciplined for carrying out the extrajudicial foreclosure considering that such is not allowed in the abovementioned portion of the agreement.

We do not agree. The agreement merely states that if complainant-mortgagee fails to pay within the period agreed upon, the mortgage shall remain in full force and effect and shall be enforceable in the manner provided by law . It did not state that it may only be foreclosed judicially or that extrajudicial foreclosure is precluded by the agreement. Absent any categorical proscription, therefore, respondents cannot be said to have exceeded their authority or that they acted with malice and bad faith.

The OCA was correct in its observation that respondents were able to comply with the requirements prescribed by law before they foreclosed the property. Respondents were able to show that appropriate filing fees were paid and notices were served on complainant and the mortgagee as well as posted and published in the manner provided by law. Complainant should have taken appropriate court action, not herein administrative case, to restrain respondents from proceeding with the auction sale.

Absent any clear and convincing evidence to support the charges against the respondents, complainant's plea cannot be granted.

WHEREFORE , the motion for reconsideration is DENIED for lack of merit.

SO ORDERED.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG

Clerk of Court