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[G.R. No. 125838. July 30, 2003]

DBP vs. CA

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUL 30 2003.

G.R. No. 125838(Development Bank of the Philippines vs. The Honorable Court of Appeals, et al.)

In its Motion for Partial Reconsideration, petitioner Development Bank of the Philippines basically contends that private respondent Emerald Resort Hotel Corporation �knowingly and voluntarily waived republication of the notice of auction sale� and thus, estopped from challenging the absence of republication of the notice of the rescheduled sale. Petitioner�s argument is based on the parties� �Agreement to Postpone� which states:

By agreement of the parties, the mortgagee and the mortgagors, please postpone the public auction sale of the property/ies of the mortgagors scheduled on August 12, 1986 at 9:00 o�clock in the morning in the Office of the Provincial Sheriff of Camarines Sur to September 11, 1986, at the same time and place without any further republication of the notice of sale as required by law.

This contention is untenable. The parties� agreement to postpone the auction sale �without any further republication of the notice of sale� cannot waive the statutory requirement of republication. In Ouano v. Court of Appeals, et al ., ^[1] cralaw where the �Agreement to Postpone Sale� also stated without any further republication of the notice of sale as required by law,� the Court ruled as follows:

Petitioner, however, insists that there was substantial compliance with the publication requirement, considering that prior publication and posting of the notice of the first date were made.

In Tambunting v. Court of Appeals, we held that republication in the manner prescribed by Act No. 3135 is necessary for the validity of a postponed extrajudicial foreclosure sale. Thus we stated:

Where required by the statute or by the terms of the foreclosure decree, public notice of the place and time of the mortgage foreclosure sale must be given, a statute requiring it being held applicable to subsequent sales as well as to the first advertised sale of the property. (underscoring supplied)

Petitioner further contends that republication may be waived voluntarily by the parties.

This argument has no basis in law. The issue of whether republication may be waived is not novel, as we have passed upon the same query in Philippine National Bank v. Nepomuceno Productions Inc.xxx.

xxx

Publication, therefore, is required to give the foreclosure sale a reasonably wide publicity such that those interested might attend the public sale. To allow the parties to waive this jurisdictional requirement would result in converting into a private sale that ought to be a public auction.

Even if there is such a waiver of republication, the same is void because it is contrary to the express mandate of Act No. 3135. Therefore, the waiver cannot be ratified by estoppel. �Estoppel cannot give validity to an act that is prohibited by law or one that is against public policy. Neither can the defense of illegality be waived.� ^[2] cralaw

In view of the foregoing, the Motion for Partial Reconsideration is denied for lack of merit.

Very truly yours,

(Sgd.)VIRGINIA ANCHETA-SORIANO
Clerk of Court

Endnotes:

[1] cralaw G.R. No. 129279, 4 March 2003.

[2] cralaw Ouano v. Court of Appeals, et al., ibid.

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