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FIRST DIVISION
G.R. No. 111654.
GODFREY BOHANAN, Petitioner, v. COURT OF APPEALS, L & R CORPORATION and Spouses ROSARIO & DIONISIO CABRERA, JR., Respondent.
.D E C I S I O N
BELLOSILLO, J.:
Petitioner questions the Decision of the Court of Appeals1
which reversed the Regional Trial Court of Manila2
declaring the foreclosure sale
dated
On
Petitioner was remiss in his fourth amortization. Consequently,
the remaining unpaid obligation (then supposedly amounting to P194,169.15)
became due and demandable and petitioner was given a grace period of ten (10)
days within which to pay but the latter failed. Thus L & R sent a notice of
foreclosure and filed a petition in the Manila Sheriffs Office to commence
extrajudicial foreclosure proceedings against him. Accordingly, a notice of
extrajudicial foreclosure sale under Act 3135,4
as amended, was made and copies
thereof sent to L & R and petitioner Godfrey Bohanan by the Deputy Sheriff
acting for the Sheriff of Manila. The notice was published in the 20 and 27
August and
At the scheduled sale on
On
The trial court rendered judgment in favor of petitioner declaring null and void the Sheriffs foreclosure sale without prejudice to the foreclosure of the mortgage on said properties strictly in accordance with law; annulling the Deed of Sale of 13 February 1987 executed by private respondent L & R in favor) of Rosario Guanzon as well as the TCTs issued pursuant thereto; and, ordering payment of damages in favor of petitioner.
On
Petitioner contends that respondent Court of Appeals erred in concluding that there was a valid foreclosure sale despite the fact that (a) he was not notified of the sale; (b) the deputy sheriff who conducted the sale did not submit a certificate of posting to prove the alleged posting in three (3) public places required under Act No. 3135; and, (c) the Post Office and Finance buildings where the notice of sale was allegedly posted (in addition to the City Hall) were not public places.
The petition must be denied. We agree with respondent Court of
Appeals that the records show no irregularity in the foreclosure sale held on
Petitioner argues that the principal defect which invalidates the questioned foreclosure sale is the non-presentation of a certificate of posting by the deputy sheriff despite the statement in Tambunting that "the published notices and certificate of posting by the Sheriff xxx should have been presented" 10 to show compliance. Petitioner then goes on to insist that since the certificate of posting is an indispensable proof of compliance with the law, the mere testimony of Deputy Sheriff Oscar Domingo (presented as petitioners own witness) that he posted the notice of sale in three (3) public places does not suffice. Hence, reliance by respondent Court of Appeals on the presumption of regularity in the performance of official duty to conclude that the legal requirements for a valid foreclosure has been complied with is misplaced.
We find the argument to be without merit. The non-presentation of a certificate of posting does not affect the intrinsic validity of the questioned foreclosure sale. As already stated, all that is required by Sec. 3 of Act No. 3135 is that public notice of the place and time of the sale be posted in three (3) public places and, where the property is worth more than P400.00, published in a newspaper of general circulation. Non-compliance constitutes a jurisdictional defect sufficient to invalidate the sale.
However, a certificate of posting is not a statutory requirement. Rather, it is significant only in the matter of proving compliance with the required posting of notice. And although we said in Tambunting that "[t]he presumption of compliance with official duty has been rebutted by the failure to present proof of posting and publication of the notice of sale," this cannot be construed to mean that a certificate of posting is indispensable without which a questioned foreclosure sale is automatically doomed as invalid. For the fact alone that there is no certificate of posting attached to the sheriffs records is not sufficient to prove the lack of posting.11 In Tambunting the absence of the affidavit of publication was considered fatal because no equally convincing and competent proof of compliance was offered to compensate for its non-presentation.
In the case at bench, however, although Deputy Sheriff Oscar Domingo failed to present a certificate of posting because some records were lost when the sheriffs office was transferred to the fifth floor of the City Hall building, he did declare under oath (when presented as petitioners own witness) that he posted notices of the questioned sale on the bulletin boards of the City Hall, the Post Office and Finance Buildings. We agree with respondent Court of Appeals that such testimony suffices in lieu of the customary certificate of posting and can properly be accorded the presumption of regularity of performance having come from a public officer to whom no improper motive to testify has been attributed.
As to the contention that the Post Office and Finance Buildings were not public places, besides merely alleging the same (we do not even know which post office and what finance building petitioner was referring to), petitioner did not question the validity of the foreclosure sale on any ground whatsoever after its termination. On the contrary, his conduct afterwards even seems to indicate that he has no objection whatsoever as to its validity. For petitioner even contends that he negotiated with private respondent L & R Corporation for the return of the property by appealing to the latters benevolence. When he could not raise the winning bid made by L & R in the foreclosure sale, petitioner agreed to look for a buyer who could afford the amount, with the difference in price to be retained by him. However, upon learning who the legal owner of the property was, respondent spouses chose to negotiate directly with the latter to save them the difference in price. As respondent court concluded, such act did not make the spouses in bad faith, more so when there is no indication that they were privy to the agreement between petitioner and L & R Corporation, even assuming there was any.
WHEREFORE, the questioned Decision and Resolution of respondent Court of Appeals are AFFIRMED in toto. Costs against petitioner.
SO ORDERED.
Padilla (Chairman), Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.
Endnotes:
1 Penned by then Associate Justice Reynato S. Puno (now a member of this Court) with Justices Justo P. Torres Jr. and Pacita Caizares-Nye concurring, Rollo, pp. 26-35.
2 Penned by Judge David O. Nitafan, RTC-Br. 52, Manila, Id., pp. 40-54.
3 Penned by Justice Justo P. Torres Jr. with Justices Jesus M. Elbinias and Pacita Caizares-Nye concurring, Id., p. 36.
4 An Act to Regulate the Sale of Property under Special Powers Inserted in or Annexed to Real Estate Mortgages.
5 Docketed as Civil Case No. 87-39561.
6 Docketed as CA-G.R. CV No. 27533 entitled Godfrey Bohanan v. L & R Corporation, et al.
7
Cruz v. Court of Appeals, G.R. No. 90369, 31 October 1990, 191
SCRA 170, 174; Cortes v. Intermediate
Appellate Court, G.R. No. 73678, 21 July 1989, 175 SCRA 545, 548; GSIS v. Court of Appeals, No.
L-40824,
8 Sec. 3, Act No. 3135.
9
No. L-48278,
10 Id., p.24.
11 Olizon v. Court of Appeals, G. R. No. 107075, 1 September 1994, 236 SCRA 148, 157.