SECOND DIVISION
G.R. No. 124372 March 16, 2000
RENATO CRISTOBAL and MARCELINA CRISTOBAL, petitioners,
vs.
THE COURT OF APPEALS, RURAL BANK OF MALOLOS and ATTY. VICTORINO EVANGELISTA, respondents.
QUISUMBING, J.:
This petition for review on certiorari seeks to reverse and set aside the Decision dated September 16, 1994, and the Resolution dated May 18, 1995, of the Court of Appeals in CA G.R. CV No. 39477. That decision set aside the judgment of the Regional Trial Court of Malolos, Branch 72, in Civil Case No. 7887-M, (1) annulling the extrajudicial foreclosure of mortgage, the sale of the properties at public auction, and the issuance of titles to the properties in the name of respondent bank, and (2) ordering the reconveyance of the same properties to petitioners.1âwphi1.nęt
The facts of the case on record1 are as follows:
Petitioners are engaged in the buying and selling of palay. To augment their capital, they applied and were granted a loan by the respondent bank in the amount of P30,000.00 payable in 270 days. The loan was secured by a mortgage over a parcel of land situated in Barrio Concepcion, Baliwag, Bulacan and covered by TCT No. T-64721. Because petitioners failed to pay their obligation on the date the loan fell due, the bank caused the mortgaged property to be foreclosed extrajudicially. At the foreclosure sale on November 16, 1981, the bank was the sole and highest bidder. The sheriff of Bulacan, who conducted the sale, then executed a certificate of sale in the name of the bank. In turn the bank caused the registration of the sale in the Office of the Registry of Deeds of Bulacan (Exh. "17-a"). Petitioners failed to redeem the property, hence, the title was consolidated in the name of the bank. Thereafter, a new transfer certificate of title (TCT No. T-275695) was issued in the name of the bank.
Through their attorney-in-fact Pacita Cristobal, petitioners were granted another loan by the bank in the amount of P70,000.00, secured by another real estate mortgage over four (4) parcels of land covered by TCT Nos. T-235811, T-174185, T-146185 and T-174186 payable in 180 days. When the obligation fell due without plaintiffs paying their indebtedness, the bank extrajudicially foreclosed the mortgage. As the highest bidder in the auction sale of subject parcels, titles were consolidated in its favor when petitioners failed to redeem the land. Consequently, new transfer certificates of title were issued in the bank's name.
On November 29, 1984, petitioners filed an action for annulment of extrajudicial foreclosure of mortgage and sale of property and for reconveyance with damages.
Petitioners, as plaintiffs below, impugned the validity of the extrajudicial foreclosure sales on the grounds that they were not furnished a copy of the application for foreclosure by the bank and a notice of the foreclosure sale; that the bank did not comply with the requirements of Act No. 3135 with respect to posting of the notice of sale and the publication of the sale in a newspaper of general circulation; that they were not notified of the expiration of the period of redemption; and that the interest due on the principal obligation was bloated.
The bank, as defendant below, claimed in its answer that it complied with the requirements of posting and publication required under Act 3135 and that it had not charged nor increased the interest rate of the principal obligations. It contended that the computation attached to the complaint was not the amount of redemption but the amount at which the bank may sell back the property to the petitioners.
On January 24, 1985, the trial court issued a writ of preliminary injunction enjoining the bank from taking the possession of the property covered by TCT No. 64721.
After trial on the merits, the trial court rendered its decision on April 21, 1992, disposing as follows:
WHEREFORE, in view of the foregoing, judgment is rendered by the Court as follows:
a) Declaring the annulment of the extrajudicial foreclosure of mortgages, the sale of the properties at public auction, the issuance of titles to the properties in the name of the defendant bank and the reconveyance of the same to the plaintiffs.
The following certificates of titles issued in the name of the defendant bank by the Registry of Deed, Malolos, Bulacan, is ordered cancelled by the Court:
Exhibit 19 — TCT No. T-275695
Exhibit 34 — TCT No. T-281827
Exhibit 34-A — TCT No. T-281825
Exhibit 34-B — TCT No. T-281828
Exhibit 34-C — TCT No. T-281926
The Register of Deeds is hereby ordered to issue new certificates of titles to the subject properties in the name of the plaintiffs.
b) The Writ of Preliminary Injunction previously issued by the Court on January 7, 1985 in favor of the plaintiffs is hereby made permanent.
c) Ordering the defendant bank to pay the plaintiffs the following amounts:
P10,000.00 attorney's fees
costs of the suit
with 6% interest on all amounts due from the filing of this action on November 29, 1984 until said amounts have been fully paid.
d) Plaintiffs, in turn, are required to pay the following amounts to the defendant bank:
based on computation No. 1 — P 73,431.162
based on computation No. 2 — P 171,930.066
———————
P245,361.228
SO ORDERED.2
Finding the decision unacceptable, the bank timely appealed to respondent Court of Appeals. It subsequently reversed and set aside the judgment of the trial court. Petitioners filed a motion for reconsideration but it was denied in a Resolution dated May 18, 1995. Hence, this petition.
Petitioners now assign the following errors:
1. The public respondent erred when it held that private respondent has substantially complied with the publication requirement under the law.
2. Public respondent Court of Appeals erred when it relied only on the testimony of private respondent's witness.
3. Public respondent Court of Appeals erred when it held that publication in the Mabuhay newspaper substantially complies with the law.
At issue is whether respondent Court of Appeals erred in finding that private respondents had complied substantially with Section 3 of Act 3135, which provides that:
Sec. 3. 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.
Non-compliance with the requirements of notice and publication in an extrajudicial foreclosure sale is a factual issue. The resolution thereof by the lower courts is binding and conclusive upon this Court.3 However, this rule is subject to exceptions, as when the findings of trial court and the Court of Appeals are in conflict.4 Also, it must be noted that non-compliance with the statutory requisites could constitute a jurisdictional defect that would invalidate the sale.
Petitioners claim that respondent Court of Appeals erred when it admitted the testimony of one Pedro Agustin, who evidently had no personal knowledge of the actual postings of the notice of sale. Following Section 36, Rule 130 of the Revised Rules of Court, such testimony could be hearsay. According to petitioners, it is not based on the personal knowledge of the witness but on the knowledge of some other person. Hearsay evidence, whether objected to or not, has no probative value unless the proponent can show that the evidence falls within the exceptions to the hearsay evidence rule. Petitioners argue that respondent bank not only failed to submit the certificate of posting but also failed to present before the court the Deputy Sheriff who allegedly did the postings. The bank merely presented its own employee, Pedro Agustin, who testified5 that he was merely verbally notified by the Sheriff that a notice of sale was posted. Respondent bank responded that the Sheriff then in-charge of the matter was no longer available, and the records of the foreclosure proceedings were no longer available also, because of the length of time that had already elapsed.6
Moreover, in Bohanan vs. Court of Appeals, 256 SCRA 355, 360-61 (1996), we have ruled that non-presentation of a certificate of posting does not affect the intrinsic validity of the questioned foreclosure sale. As therein held, "a certificate of posting is not required, much less considered indispensable, for the validity of a foreclosure sale" under Act 3135.
Further, as respondent bank asserts, a mortgagor who alleges absence of a requisite has the burden of establishing that fact. Petitioners failed in this regard. Foreclosure proceedings have in their favor the presumption of regularity and the burden of evidence to rebut the same is on the petitioners.7 As well said by the respondent appellate court:
. . . Under the circumstances, there is a basis for presuming that official duty has been regularly performed by the sheriff.1âwphi1 Being a disputable presumption; the same is valid unless controverted by evidence. The presumption has not been rebutted by any convincing and substantial evidence by the appellee who has the onus to present evidence that appellant has not complied with the posting requirement of the law. In the absence therefore of any proof to the contrary, the presumption that official duty has been regularly performed stays.
Petitioners also claim that the Court of Appeals erred when it held that publication in the Mabuhay newspaper is a substantial compliance with the requirement of the law. However, the records show that the sheriffs notice of sale was published in the Mabuhay newspaper generally circulated in the Province of Bulacan. Petitioners do not dispute this fact. Affidavits of publication by Jose Pavia, Publisher/Editor of the Mabuhay Weekly newspaper, and newspaper clippings of Mabuhay containing the notice of sheriffs sale in its October 12, 1981, November 1 & 8, 1981, September 26, 1982 and October 3 & 10, 1982 issues, were submitted by respondent bank. In our view, these pieces of evidence prove substantial compliance.
In Olizon vs. Court of Appeals, 236 SCRA 148, 156 (1994), we held that, the publication of the notice of sale in a newspaper of general circulation alone is more than sufficient compliance with the notice-posting requirements of the law. Clearly, the respondent appellate court did not err in finding that respondent bank had substantially complied with those requirements.
ACCORDINGLY, the instant petition is DISMISSED. The decision of the Court of Appeals in CA-G.R. CV No. 39477 is AFFIRMED. No pronouncement as to costs.
SO ORDERED.1âwphi1.nęt
Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.
Footnotes
1 Rollo, pp. 110-112.
2 Id. at 68-69.
3 See Sulit vs. Court of Appeals, 268 SCRA 441, 456 (1997).
4 See Yobido vs. Court of Appeals, 281 SCRA 1, 7-8 (1997).
5 Rollo, p. 61.
6 Id. at 131.
7 See Philippine National Bank vs. Adil, et al., 118 SCRA 110, 118 (1982).
8 Rollo, p. 115.
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