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618 Phil. 104


[ G.R. No. 151903, October 09, 2009 ]




Before the Court is a petition for review on certiorari[1] filed by petitioners, spouses Manuel and Araceli Go Cinco (collectively, the spouses Go Cinco), assailing the decision[2] dated June 22, 2001 of the Court of Appeals (CA) in CA-G.R. CV No. 47578, as well as the resolution[3] dated January 25, 2002 denying the spouses Go Cinco's motion for reconsideration.


In December 1987, petitioner Manuel Cinco (Manuel) obtained a commercial loan in the amount of P700,000.00 from respondent Maasin Traders Lending Corporation (MTLC). The loan was evidenced by a promissory note dated December 11, 1987,[4] and secured by a real estate mortgage executed on December 15, 1987 over the spouses Go Cinco's land and 4-storey building located in Maasin, Southern Leyte.

Under the terms of the promissory note, the P700,000.00 loan was subject to a monthly interest rate of 3% or 36% per annum and was payable within a term of 180 days or 6 months, renewable for another 180 days. As of July 16, 1989, Manuel's outstanding obligation with MTLC amounted to P1,071,256.66, which amount included the principal, interest, and penalties.[5]

To be able to pay the loan in favor of MTLC, the spouses Go Cinco applied for a loan with the Philippine National Bank, Maasin Branch (PNB or the bank) and offered as collateral the same properties they previously mortgaged to MTLC. The PNB approved the loan application for P1.3 Million[6] through a letter dated July 8, 1989; the release of the amount, however, was conditioned on the cancellation of the mortgage in favor of MTLC.

On July 16, 1989, Manuel went to the house of respondent Ester Servacio (Ester), MTLC's President, to inform her that there was money with the PNB for the payment of his loan with MTLC. Ester then proceeded to the PNB to verify the information, but she claimed that the bank's officers informed her that Manuel had no pending loan application with them. When she told Manuel of the bank's response, Manuel assured her there was money with the PNB and promised to execute a document that would allow her to collect the proceeds of the PNB loan.

On July 20, 1989, Manuel executed a Special Power of Attorney[7] (SPA) authorizing Ester to collect the proceeds of his PNB loan. Ester again went to the bank to inquire about the proceeds of the loan. This time, the bank's officers confirmed the existence of the P1.3 Million loan, but they required Ester to first sign a deed of release/cancellation of mortgage before they could release the proceeds of the loan to her. Outraged that the spouses Go Cinco used the same properties mortgaged to MTLC as collateral for the PNB loan, Ester refused to sign the deed and did not collect the P1.3 Million loan proceeds.

As the MTLC loan was already due, Ester instituted foreclosure proceedings against the spouses Go Cinco on July 24, 1989.

To prevent the foreclosure of their properties, the spouses Go Cinco filed an action for specific performance, damages, and preliminary injunction[8] before the Regional Trial Court (RTC), Branch 25, Maasin, Southern Leyte. The spouses Go Cinco alleged that foreclosure of the mortgage was no longer proper as there had already been settlement of Manuel's obligation in favor of MTLC. They claimed that the assignment of the proceeds of the PNB loan amounted to the payment of the MTLC loan. Ester's refusal to sign the deed of release/cancellation of mortgage and to collect the proceeds of the PNB loan were, to the spouses Go Cinco, completely unjustified and entitled them to the payment of damages.

Ester countered these allegations by claiming that she had not been previously informed of the spouses Go Cinco's plan to obtain a loan from the PNB and to use the loan proceeds to settle Manuel's loan with MTLC. She claimed that she had no explicit agreement with Manuel authorizing her to apply the proceeds of the PNB loan to Manuel's loan with MTLC; the SPA merely authorized her to collect the proceeds of the loan. She thus averred that it was unfair for the spouses Go Cinco to require the release of the mortgage to MTLC when no actual payment of the loan had been made.

In a decision dated August 16, 1994,[9] the RTC ruled in favor of the spouses Go Cinco. The trial court found that the evidence sufficiently established the existence of the PNB loan whose proceeds were available to satisfy Manuel's obligation with MTLC, and that Ester unjustifiably refused to collect the amount. Creditors, it ruled, cannot unreasonably prevent payment or performance of obligation to the damage and prejudice of debtors who may stand liable for payment of higher interest rates.[10] After finding MTLC and Ester liable for abuse of rights, the RTC ordered the award of the following amounts to the spouses Go Cinco:
(a) P1,044,475.15 plus 535.63 per day hereafter, representing loss of savings on interest, by way of actual or compensatory damages, if defendant corporation insists on the original 3% monthly interest rate;
(b) P100,000.00 as unrealized profit;
(c) P1,000,000.00 as moral damages;
(d) P20,000.00 as exemplary damages;
(e) P22,000.00 as litigation expenses; and
(f) 10% of the total amount as attorney's fees plus costs.[11]
Through an appeal with the CA, MTLC and Ester successfully secured a reversal of the RTC's decision. Unlike the trial court, the appellate court found it significant that there was no explicit agreement between Ester and the spouses Go Cinco for the cancellation of the MTLC mortgage in favor of PNB to facilitate the release and collection by Ester of the proceeds of the PNB loan. The CA read the SPA as merely authorizing Ester to withdraw the proceeds of the loan. As Manuel's loan obligation with MTLC remained unpaid, the CA ruled that no valid objection could be made to the institution of the foreclosure proceedings. Accordingly, it dismissed the spouses Go Cinco' complaint. From this dismissal, the spouses Go Cinco filed the present appeal by certiorari.


The spouses Go Cinco impute error on the part of the CA for its failure to consider their acts as equivalent to payment that extinguished the MTLC loan; their act of applying for a loan with the PNB was indicative of their good faith and honest intention to settle the loan with MTLC. They contend that the creditors have the correlative duty to accept the payment.

The spouses Go Cinco charge MTLC and Ester with bad faith and ill-motive for unjustly refusing to collect the proceeds of the loan and to execute the deed of release of mortgage. They assert that Ester's justifications for refusing the payment were flimsy excuses so she could proceed with the foreclosure of the mortgaged properties that were worth more than the amount due to MTLC. Thus, they conclude that the acts of MTLC and of Ester amount to abuse of rights that warrants the award of damages in their (spouses Go Cinco's) favor.

In refuting the claims of the spouses Go Cinco, MTLC and Ester raise the same arguments they raised before the RTC and the CA. They claim that they were not aware of the loan and the mortgage to PNB, and that there was no agreement that the proceeds of the PNB loan were to be used to settle Manuel's obligation with MTLC. Since the MTLC loan remained unpaid, they insist that the institution of the foreclosure proceedings was proper. Additionally, MTLC and Ester contend that the present petition raised questions of fact that cannot be addressed in a Rule 45 petition.


The Court finds the petition meritorious.

Preliminary Considerations

Our review of the records shows that there are no factual questions involved in this case; the ultimate facts necessary for the resolution of the case already appear in the records. The RTC and the CA decisions differed not so much on the findings of fact, but on the conclusions derived from these factual findings. The correctness of the conclusions derived from factual findings raises legal questions when the conclusions are so linked to, or are inextricably intertwined with, the appreciation of the applicable law that the case requires, as in the present case.[12] The petition raises the issue of whether the loan due the MTLC had been extinguished; this is a question of law that this Court can fully address and settle in an appeal by certiorari.

Payment as Mode of
Extinguishing Obligations

Obligations are extinguished, among others, by payment or performance,[13] the mode most relevant to the factual situation in the present case. Under Article 1232 of the Civil Code, payment means not only the delivery of money but also the performance, in any other manner, of an obligation. Article 1233 of the Civil Code states that "a debt shall not be understood to have been paid unless the thing or service in which the obligation consists has been completely delivered or rendered, as the case may be." In contracts of loan, the debtor is expected to deliver the sum of money due the creditor. These provisions must be read in relation with the other rules on payment under the Civil Code,[14] which rules impliedly require acceptance by the creditor of the payment in order to extinguish an obligation.

In the present case, Manuel sought to pay Ester by authorizing her, through an SPA, to collect the proceeds of the PNB loan - an act that would have led to payment if Ester had collected the loan proceeds as authorized. Admittedly, the delivery of the SPA was not, strictly speaking, a delivery of the sum of money due to MTLC, and Ester could not be compelled to accept it as payment based on Article 1233. Nonetheless, the SPA stood as an authority to collect the proceeds of the already-approved PNB loan that, upon receipt by Ester, would have constituted as payment of the MTLC loan.[15] Had Ester presented the SPA to the bank and signed the deed of release/cancellation of mortgage, the delivery of the sum of money would have been effected and the obligation extinguished.[16] As the records show, Ester refused to collect and allow the cancellation of the mortgage.

Under these facts, Manuel posits two things: first, that Ester's refusal was based on completely unjustifiable grounds; and second, that the refusal was equivalent to payment that led to the extinguishment of the obligation.

a. Unjust Refusal to Accept Payment

After considering Ester's arguments, we agree with Manuel that Ester's refusal of the payment was without basis.

Ester refused to accept the payment because the bank required her to first sign a deed of release/cancellation of the mortgage before the proceeds of the PNB loan could be released. As a prior mortgagee, she claimed that the spouses Go Cinco should have obtained her consent before offering the properties already mortgaged to her as security for the PNB loan. Moreover, Ester alleged that the SPA merely authorized her to collect the proceeds of the loan; there was no explicit agreement that the MTLC loan would be paid out of the proceeds of the PNB loan.

There is nothing legally objectionable in a mortgagor's act of taking a second or subsequent mortgage on a property already mortgaged; a subsequent mortgage is recognized as valid by law and by commercial practice, subject to the prior rights of previous mortgages. Section 4, Rule 68 of the 1997 Rules of Civil Procedure on the disposition of the proceeds of sale after foreclosure actually requires the payment of the proceeds to, among others, the junior encumbrancers in the order of their priority.[17] Under Article 2130 of the Civil Code, a stipulation forbidding the owner from alienating the immovable mortgaged is considered void. If the mortgagor-owner is allowed to convey the entirety of his interests in the mortgaged property, reason dictates that the lesser right to encumber his property with other liens must also be recognized. Ester, therefore, could not validly require the spouses Go Cinco to first obtain her consent to the PNB loan and mortgage. Besides, with the payment of the MTLC loan using the proceeds of the PNB loan, the mortgage in favor of the MTLC would have naturally been cancelled.

We find it improbable for Ester to claim that there was no agreement to apply the proceeds of the PNB loan to the MTLC loan. Beginning July 16, 1989, Manuel had already expressed intent to pay his loan with MTLC and thus requested for an updated statement of account. Given Manuel's express intent of fully settling the MTLC loan and of paying through the PNB loan he would secure (and in fact secured), we also cannot give credit to the claim that the SPA only allowed Ester to collect the proceeds of the PNB loan, without giving her the accompanying authority, although verbal, to apply these proceeds to the MTLC loan. Even Ester's actions belie her claim as she in fact even went to the PNB to collect the proceeds. In sum, the surrounding circumstances of the case simply do not support Ester's position.

b. Unjust Refusal Cannot be Equated to Payment

While Ester's refusal was unjustified and unreasonable, we cannot agree with Manuel's position that this refusal had the effect of payment that extinguished his obligation to MTLC. Article 1256 is clear and unequivocal on this point when it provides that -

ARTICLE 1256. If the creditor to whom tender of payment has been made refuses without just cause to accept it, the debtor shall be released from responsibility by the consignation of the thing or sum due. [Emphasis supplied.]

In short, a refusal without just cause is not equivalent to payment; to have the effect of payment and the consequent extinguishment of the obligation to pay, the law requires the companion acts of tender of payment and consignation.

Tender of payment, as defined in Far East Bank and Trust Company v. Diaz Realty, Inc.,[18] is the definitive act of offering the creditor what is due him or her, together with the demand that the creditor accept the same. When a creditor refuses the debtor's tender of payment, the law allows the consignation of the thing or the sum due. Tender and consignation have the effect of payment, as by consignation, the thing due is deposited and placed at the disposal of the judicial authorities for the creditor to collect.[19]

A sad twist in this case for Manuel was that he could not avail of consignation to extinguish his obligation to MTLC, as PNB would not release the proceeds of the loan unless and until Ester had signed the deed of release/cancellation of mortgage, which she unjustly refused to do. Hence, to compel Ester to accept the loan proceeds and to prevent their mortgaged properties from being foreclosed, the spouses Go Cinco found it necessary to institute the present case for specific performance and damages.

c. Effects of Unjust Refusal

Under these circumstances, we hold that while no completed tender of payment and consignation took place sufficient to constitute payment, the spouses Go Cinco duly established that they have legitimately secured a means of paying off their loan with MTLC; they were only prevented from doing so by the unjust refusal of Ester to accept the proceeds of the PNB loan through her refusal to execute the release of the mortgage on the properties mortgaged to MTLC. In other words, MTLC and Ester in fact prevented the spouses Go Cinco from the exercise of their right to secure payment of their loan. No reason exists under this legal situation why we cannot compel MTLC and Ester: (1) to release the mortgage to MTLC as a condition to the release of the proceeds of the PNB loan, upon PNB's acknowledgment that the proceeds of the loan are ready and shall forthwith be released; and (2) to accept the proceeds, sufficient to cover the total amount of the loan to MTLC, as payment for Manuel's loan with MTLC.

We also find that under the circumstances, the spouses Go Cinco have undertaken, at the very least, the equivalent of a tender of payment that cannot but have legal effect. Since payment was available and was unjustifiably refused, justice and equity demand that the spouses Go Cinco be freed from the obligation to pay interest on the outstanding amount from the time the unjust refusal took place;[20] they would not have been liable for any interest from the time tender of payment was made if the payment had only been accepted. Under Article 19 of the Civil Code, they should likewise be entitled to damages, as the unjust refusal was effectively an abusive act contrary to the duty to act with honesty and good faith in the exercise of rights and the fulfillment of duty.

For these reasons, we delete the amounts awarded by the RTC to the spouses Go Cinco (P1,044,475.15, plus P563.63 per month) representing loss of savings on interests for lack of legal basis. These amounts were computed based on the difference in the interest rates charged by the MTLC (36% per annum) and the PNB (17% to 18% per annum), from the date of tender of payment up to the time of the promulgation of the RTC decision. The trial court failed to consider the effects of a tender of payment and erroneously declared that MTLC can charge interest at the rate of only 18% per annum - the same rate that PNB charged, not the 36% interest rate that MTLC charged; the RTC awarded the difference in the interest rates as actual damages.

As part of the actual and compensatory damages, the RTC also awarded P100,000.00 to the spouses Go Cinco representing unrealized profits. Apparently, if the proceeds of the PNB loan (P1,203,685.17) had been applied to the MTLC loan (P1,071,256.55), there would have been a balance of P132,428.62 left, which amount the spouses Go Cinco could have invested in their businesses that would have earned them a profit of at least P100,000.00.

We find no factual basis for this award. The spouses Go Cinco were unable to substantiate the amount they claimed as unrealized profits; there was only their bare claim that the excess could have been invested in their other businesses. Without more, this claim of expected profits is at best speculative and cannot be the basis for a claim for damages. In Lucas v. Spouses Royo,[21] we declared that:

In determining actual damages, the Court cannot rely on speculation, conjecture or guesswork as to the amount. Actual and compensatory damages are those recoverable because of pecuniary loss in business, trade, property, profession, job or occupation and the same must be sufficiently proved, otherwise, if the proof is flimsy and unsubstantiated, no damages will be given. [Emphasis supplied.]

We agree, however, that there was basis for the award of moral and exemplary damages and attorney's fees.

Ester's act of refusing payment was motivated by bad faith as evidenced by the utter lack of substantial reasons to support it. Her unjust refusal, in her behalf and for the MTLC which she represents, amounted to an abuse of rights; they acted in an oppressive manner and, thus, are liable for moral and exemplary damages.[22] We nevertheless reduce the P1,000,000.00 to P100,000.00 as the originally awarded amount for moral damages is plainly excessive.

We affirm the grant of exemplary damages by way of example or correction for the public good in light of the same reasons that justified the grant of moral damages.

As the spouses Go Cinco were compelled to litigate to protect their interests, they are entitled to payment of 10% of the total amount of awarded damages as attorney's fees and expenses of litigation.

WHEREFORE, we GRANT the petitioners' petition for review on certiorari, and REVERSE the decision of June 22, 2001 of the Court of Appeals in CA-G.R. CV No. 47578, as well as the resolution of January 25, 2002 that followed. We REINSTATE the decision dated August 16, 1994 of the Regional Trial Court, Branch 25, Maasin, Southern Leyte, with the following MODIFICATIONS:

(1) The respondents are hereby directed to accept the proceeds of the spouses Go Cinco's PNB loan, if still available, and to consent to the release of the mortgage on the property given as security for the loan upon PNB's acknowledgment that the proceeds of the loan, sufficient to cover the total indebtedness to respondent Maasin Traders Lending Corporation computed as of June 20, 1989, shall forthwith be released;

(2) The award for loss of savings and unrealized profit is deleted;

(3) The award for moral damages is reduced to P100,000.00; and

(4) The awards for exemplary damages, attorney's fees, and expenses of litigation are retained.
The awards under (3) and (4) above shall be deducted from the amount of the outstanding loan due the respondents as of June 20, 1989. Costs against the respondents.


Carpio-Morales**, (Acting Chairperson), Corona*, Nachura***, and Abad, JJ., concur.

* Designated additional Member of the Second Division per Special Order No. 718 dated October 2, 2009.

** Designated Acting Chairperson of the Second Division per Special Order No. 690 dated September 4, 2009.

*** Designated additional Member of the Second Division per Special Order No. 730 dated October 5, 2009.

[1] Under Rule 45 of the 1997 Rules of Civil Procedure. Rollo, pp. 5-32.

[2] Penned by Associate Justice Renato Dacudao (retired), with Associate Justice Romeo Callejo, Jr., who retired as Member of this Court, and Associate Justice Sergio PestaƱo, concurring; id. at 75-84.

[3] Id. at 99-100.

[4] Id. at 46.

[5] Id. at 49.

[6] The net proceeds of the PNB loan were P1,203,685.17.

[7] Rollo, p. 47.

[8] Docketed as Civil Case No. R-2575.

[9] Penned by Judge Numeriano Avila, Jr. Rollo, pp. 60-73.

[10] Id. at 67.

[11] Id. at 73.

[12] See Philippine American General Insurance Company v. Pks Shipping Company, 449 Phil. 223 (2003).

[13] CIVIL CODE, Article 1231 (1).

[14] The pertinent provisions of the Civil Code on Payment are:

Art. 1235. When the obligee accepts the performance, knowing its incompleteness or irregularity, and without expressing any protest or objection, the obligation is deemed fully complied with.

Art. 1236. The creditor is not bound to accept payment or performance by a third person who has no interest in the fulfillment of the obligation, unless there is a stipulation to the contrary.

Whoever pays for another may demand from the debtor what he has paid, except that if he paid without the knowledge or against the will of the debtor, he can recover only insofar as the payment has been beneficial to the debtor.

Art. 1238. Payment made by a third person who does not intend to be reimbursed by the debtor is deemed to be a donation, which requires the debtor's consent. But the payment is in any case valid as to the creditor who has accepted it.

Art. 1244. The debtor of a thing cannot compel the creditor to receive a different one, although the latter may be of the same value as, or more valuable than that which is due.

In obligations to do or not to do, an act or forbearance cannot be substituted by another act or forbearance against the obligee's will.

Art. 1248. Unless there is an express stipulation to that effect, the creditor cannot be compelled partially to receive the prestations in which the obligation consists. Neither may the debtor be required to make partial payments.

However, when the debt is in part liquidated and in part unliquidated, the creditor may demand and the debtor may effect the payment of the former without waiting for the liquidation of the latter.

[15] We apply here, by parity of reasoning, the principle adopted in payment using mercantile documents. Payment by means of mercantile documents like checks and promissory notes in lieu of the sum of money due does not extinguish the obligation until they have been accepted and cashed by the creditor. See Crystal v. Court of Appeals, 159 Phil. 557 (1975).

[16] The PNB's officers testified that had the required document (deed of release/cancellation of mortgage) been submitted, the bank could have released the loan proceeds. Rollo, p. 81.

[17] SEC. 4. Disposition of proceeds of sale. - The amount realized from the foreclosure sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and when there shall be any balance or residue, after paying off the mortgage debt due, the same shall be paid to junior encumbrancers in the order of their priority, to be ascertained by the court, or if there be no such encumbrancers or there be a balance or residue after payment to them, then to the mortgagor or his duly authorized agent, or to the person entitled to it.

[18] 416 Phil. 147 (2001).

[19] CIVIL CODE, Article 1258.

[20] Spouses Biesterbos v. Court of Appeals and Bartlome, 458 Phil. 265 (2003), citing Araneta, Inc. v. De Paterno and Vidal, 91 Phil. 786 (1952).

[21] 398 Phil. 400 (2000).

[22] CIVIL CODE, Articles 2220 and 2232.

* Designated Acting Chief Justice from October 6 to 11, 2009 per Special Order No. 721 dated October 5, 2009.

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