BLANCA CONSUELO ROXAS, petitioner, vs.
COURT OF APPEALS
and RURAL BANK OF DUMALAG, INC., respondents.
G.R. No. 100480, SECOND DIVISION, May 1, 1993, NOCON, J.
It is settled doctrine that failure to publish notice of auction sale as
required by the statute constitutes a jurisdiction defects with
invalidates the sale. Even slight deviations therefrom are not
allowed.
Sec. 5 of RA 720, as amended by RA 5939, provides that notices of
foreclosure should be posted in at least 3 of the most conspicuous public
places in the municipality and barrio where the land mortgaged is
situated.
In the case at bar, the Certificate of Posting which was executed by the
sheriff states that he posted 3 copies of the notice of public auction sale in 3
conspicuous public places in the municipality of Panay, where the subject
land was situated and in like manner in Roxas City, where the public
auction sale took place. It is beyond dispute that there was a failure to
publish the notices of auction sale as required by law.
FACTS:
Petitioner Roxas is the owner of a parcel of land located at Tanza Norte,
Panay, Capiz. She executed a SPA appointing her brother, Manuel, as her
attorney-in-fact, for applying an agricultural loan with private respondent
Rural Bank using said land as collateral.
Manuel applied for, was granted, and received an agricultural loan in the
amount of P2,000 from private respondent. As security, he executed the
corresponding real estate mortgage over the subject land.
Private respondent foreclosed the real estate mortgage for failure to pay the
loan on maturity. The subject land was sold at public auction to private
respondent, being the highest bidder for P3,009. For failure to exercise the
right of redemption, private respondent consolidated its ownership over the
subject land.
Petitioner filed a complaint for cancellation of foreclosure of mortgage and
annulment of auction sale against private respondent before the RTC.
Petitioner claimed that Manuel never informed her about the approval of
the loan nor did she receive any demand for payment from private
respondent. Moreover, the foreclosure did not comply with the requirement
of giving written notices to all possible redemptioners. She consigned the
amount of P4,194 as redemption price.
RTC rendered judgment in favor of petitioner. It ruled that there was no
compliance with the requirements of Sec. 5 of RA 720, as amended. The
notices of foreclosure were posted in the municipality where the subject
land was located and in Roxas City, but not in the barrio. Moreover, there
was no affidavit of the sheriff who conducted the sale, attached to the
records of the case. CA reversed the decision of the trial court. It ruled that
there was substantial compliance with the requirements. Hence, the present
petition.
ISSUE:
Whether or not the requirements on notice were complied with. (NO)
RULING:
It is settled doctrine that failure to publish notice of auction sale as
required by the statute constitutes a jurisdiction defects with
invalidates the sale. Even slight deviations therefrom are not
allowed.
Sec. 5 of RA 720, as amended by RA 5939, provides that notices of
foreclosure should be posted in at least 3 of the most conspicuous public
places in the municipality and barrio where the land mortgaged is
situated.
In the case at bar, the Certificate of Posting which was executed by the
sheriff states that he posted
3 copies of the notice of public auction sale in 3 conspicuous public places
in the municipality of Panay, where the subject land was situated and in
like manner in Roxas City, where the public auction sale took place.
It is beyond dispute that there was a failure to publish the notices of
auction sale as required by law.
Sec. 5 provides further that proof of publication shall be accomplished by an
affidavit of the sheriff or officer conducting the foreclosure sale. In this
case, the sheriff executed a certificate of posting, which is not the affidavit
required by law. The rationale behind this is simple: an affidavit is a sworn
statement in writing. Strict compliance with the aforementioned provisions
is mandated.
We cannot sustain the view of respondent court that there was substantial
compliance with Sec. 5 of RA 720, as amended. We declare the foreclosure
and public auction sale of the subject land void.
