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624 Phil. 408


[ G.R. No. 184122, January 20, 2010 ]




This case is about the propriety of a summary judgment in resolving a documented claim of alleged excessive penalty charges, interest, attorney's fees, and foreclosure expenses imposed in an extrajudicial foreclosure of mortgage.

The Facts and the Case

Respondents Norman and Angelina Yu (the Yus), doing business as Tuanson Trading, and Tuanson Builders Corporation (Tuanson Builders) borrowed various sums totaling P75 million from Far East Bank and Trust Company. For collateral, they executed real estate mortgages over several of their properties,[1] including certain lands in Legazpi City owned by Tuanson Trading.[2] In 1999, unable to pay their loans, the Yus and Tuanson Builders requested a loan restructuring,[3] which the bank, now merged with Bank of the Philippine Islands (BPI), granted.[4] By this time, the Yus' loan balance stood at P33,400,000.00. The restructured loan used the same collaterals, with the exception of Transfer Certificate of Title 40247 that secured a loan of P1,600,000.[5]

Despite the restructuring, however, the Yus still had difficulties paying their loan. They asked BPI to release some of the mortgaged lands since their total appraised value far exceeded the amount of the remaining debt. When BPI ignored their request, the Yus withheld payments on their amortizations. Thus, BPI extrajudicially foreclosed[6] the mortgaged properties in Legazpi City and in Pili, Camarines Sur. But the Yus sought by court action against BPI and the winning bidder, Magnacraft Development Corporation (Magnacraft), the annulment of the foreclosure sale.

In the course of the proceedings, however, the Yus and Magnacraft entered into a compromise agreement[7] that affirmed the latter's ownership of three out of the 10 parcels of land that were auctioned. By virtue of this agreement, the court dismissed the complaint against Magnacraft,[8] without prejudice to the Yus filing a new one against BPI.

On October 24, 2003 the Yus filed their new complaint before the Regional Trial Court (RTC) of Legazpi City, Branch 1, in Civil Case 10286 against BPI for recovery of alleged excessive penalty charges, attorney's fees, and foreclosure expenses that the bank caused to be incorporated in the price of the auctioned properties.[9]

In its answer,[10] BPI essentially admitted the foreclosure of the mortgaged properties for P39,055,254.95, broken down as follows: P33,283,758.73 as principal debt; P2,110,282.78 as interest; and P3,661,213.46 as penalty charges.[11] BPI qualified that the total of P39,055,254.95 corresponded only to the Yus' debt as of date of filing of the petition.[12] The notice of the auction sale said that the total was "inclusive of interest, penalty charges, attorney's fee and expenses of this foreclosure."[13]

BPI further admitted that its bid of P45,090,566.41 for all the auctioned properties was broken down as follows:[14]

Penalty Charges

Add: 10% Attorney's Fees
Litigation Expenses & Interest
Cost of Publication & Interest

P 45,090,566.41

BPI also admitted that Magnacraft submitted the highest and winning bid of P45,500,000.00.[15] The sheriff turned over this amount to BPI.[16] According to BPI, it in turn remitted to the Clerk of Court the P409,433.59 difference between its bid price and that of Magnacraft's.[17] Although the proceeds of the sale exceeded the P39,055,254.95 stated in the notice of sale by P6,035,311.46,[18] the bid amount increased because it now included litigation expenses and attorney's fees as well as interests and penalties as recomputed.[19]

BPI admitted that it also pushed through with the second auction for the sale of a lot in Pili, Camarines Sur that secured a remaining debt of P5,562,000.[20] BPI made the lone bid[21] of P1,701,934.09.[22]

The Yus had three causes of action against BPI.

First. The bank imposed excessive penalty charges and interests: over P5 million in penalty charges computed at 36% per annum compared to the 12% per annum that the Court fixed in the cases of State Investment House, Inc. v. Court of Appeals[23] and Ruiz v. Court of Appeals.[24] In addition, BPI collected a 14% yearly interest on the principal, bringing the combined penalty charges and interest to 50% of the principal per annum.

Second. BPI also imposed a charge of P4,052,046.11 in attorney's fees, the equivalent of 10% of the principal, interest, and penalty charges.

Third. BPI did not provide documents to support its claim for foreclosure expenses of P446,726.74 and cost of publication of P518,059.21.

As an alternative to their three causes of action, the Yus claimed that BPI was in estoppel to claim more than the amount stated in its published notices. Consequently, it must turn over the excess bid of P6,035,311.46.

After pre-trial, the Yus moved for summary judgment,[25] pointing out that based on the answer,[26] the common exhibits of the parties,[27] and the answer to the written interrogatories to the sheriff,[28] no genuine issues of fact exist in the case. The Yus waived their claim for moral damages so the RTC can dispose of the case through a summary judgment.[29]

Initially, the RTC granted only a partial summary judgment. It reduced the penalty charge of 36% per annum[30] to 12% per annum until the debt would have been fully paid but maintained the attorney's fees as reasonable considering that BPI already waived the P1,761,511.36 that formed part of the attorney's fees and reduced the rate of attorney's fees it collected from 25% to 10% of the amount due. The RTC ruled that facts necessary to resolve the issues on penalties and fees had been admitted by the parties thus dispensing with the need to receive evidence.[31]

Still, the RTC held that it needed to receive evidence for the resolution of the issues of (1) whether or not the foreclosure and publication expenses were justified; (2) whether or not the foreclosure of the lot in Pili, Camarines Sur, was valid given that the proceeds of the foreclosure of the properties in Legazpi City sufficiently covered the debt; and (3) whether or not BPI was entitled to its counterclaim for attorney's fees, moral damages, and exemplary damages.[32]

The Yus moved for partial reconsideration.[33] They argued that, since BPI did not mark in evidence any document in support of the foreclosure expenses it claimed, it may be assumed that the bank had no evidence to prove such expenses. As regards their right to the pro-rating of their debt among the mortgaged properties, the Yus pointed out that BPI did not dispute the fact that the proceeds of the sale of the properties in Legazpi City fully satisfied the debt. Thus, the court could already resolve without trial the issue of whether or not the foreclosure of the Pili property was valid.

Further, the Yus sought reconsideration of the reduction of penalty charges and the allowance of the attorney's fees. They claimed that the penalty charges should be deleted for violation of Republic Act (R.A.) 3765 or the Truth in Lending Act. BPI's disclosure did not state the rate of penalties on late amortizations. Also, the Yus asked the court to reduce the attorney's fees from 10% to 1% of the amount due. On January 3, 2006 the RTC reconsidered its earlier decision and rendered a summary judgment:[34]

1. Deleting the penalty charges imposed by BPI for non-compliance with the Truth in Lending Act;

2. Reducing the attorney's fees to 1% of the principal and interest;

3. Upholding the reasonableness of the foreclosure expenses and cost of publication, both with interests;

4. Reiterating the turnover by the Clerk of Court to the Yus of the excess in the bid price;

5. Deleting the Yus' claim for moral damages they having waived it;

6. Denying the Yus' claim for attorney's fees for lack of basis; and

7. Dismissing BPI's counterclaim for moral and exemplary damages and for attorney's fees for lack of merit considering that summary judgment has been rendered in favor of the Yus.

BPI appealed the decision to the Court of Appeals (CA) in CA-G.R. CV 86577. But the CA rendered judgment on January 23, 2008, affirming the RTC decision in all respects. And when BPI asked for reconsideration,[35] the CA denied it on July 14, 2008,[36] hence, the bank's recourse to this Court.

The Issues Presented

BPI presents the following issues:

1. Whether or not the case presented no genuine issues of fact such as to warrant a summary judgment by the RTC; and

2. Where summary judgment is proper, whether or not the RTC and the CA a) correctly deleted the penalty charges because of BPI's alleged failure to comply with the Truth in Lending Act; b) correctly reduced the attorney's fees to 1% of the judgment debt; and c) properly dismissed BPI's counterclaims for moral and exemplary damages, attorney's fees, and litigation expenses.
The Court's Rulings

One. A summary judgment is apt when the essential facts of the case are uncontested or the parties do not raise any genuine issue of fact.[37] Here, to resolve the issue of the excessive charges allegedly incorporated into the auction bid price, the RTC simply had to look at a) the pleadings of the parties; b) the loan agreements, the promissory note, and the real estate mortgages between them; c) the foreclosure and bidding documents; and d) the admissions and other disclosures between the parties during pre-trial. Since the parties admitted not only the existence, authenticity, and genuine execution of these documents but also what they stated, the trial court did not need to hold a trial for the reception of the evidence of the parties.

BPI contends that a summary judgment was not proper given the following issues that the parties raised: 1) whether or not the loan agreements between them were valid and enforceable; 2) whether or not the Yus have a cause of action against BPI; 3) whether or not the Yus are proper parties in interest; 4) whether or not the Yus are estopped from questioning the foreclosure proceeding after entering into a compromise agreement with Magnacraft; 5) whether or not the penalty charges and fees and expenses of litigation and publication are excessive; and 6) whether or not BPI violated the Truth in Lending Act.[38]

But these are issues that could be readily resolved based on the facts established by the pleadings and the admissions of the parties.[39] Indeed, BPI has failed to name any document or item of fact that it would have wanted to adduce at the trial of the case. A trial would have been such a great waste of time and resources.

Two. Both the RTC and CA decisions cited BPI's alleged violation of the Truth in Lending Act and the ruling of the Court in New Sampaguita Builders Construction, Inc. v. Philippine National Bank[40] to justify their deletion of the penalty charges. Section 4 of the Truth in Lending Act states that:

SEC. 4. Any creditor shall furnish to each person to whom credit is extended, prior to the consummation of the transaction, a clear statement in writing setting forth, to the extent applicable and in accordance with rules and regulations prescribed by the Board, the following information:

(1) the cash price or delivered price of the property or service to be acquired;
(2) the amounts, if any, to be credited as down payment and/or trade-in;
(3) the difference between the amounts set forth under clauses (1) and (2);
(4) the charges, individually itemized, which are paid or to be paid by such person in connection with the transaction but which are not incident to the extension of credit;
(5) the total amount to be financed;
(6) the finance charge expressed in terms of pesos and centavos; and
(7) the percentage that the finance bears to the total amount to be financed expressed as a simple annual rate on the outstanding unpaid balance of the obligation.
Penalty charge, which is liquidated damages resulting from a breach,[41] falls under item (6) or finance charge. A finance charge "represents the amount to be paid by the debtor incident to the extension of credit."[42] The lender may provide for a penalty clause so long as the amount or rate of the charge and the conditions under which it is to be paid are disclosed to the borrower before he enters into the credit agreement.

In this case, although BPI failed to state the penalty charges in the disclosure statement, the promissory note that the Yus signed, on the same date as the disclosure statement, contained a penalty clause that said: "I/We jointly and severally, promise to further pay a late payment charge on any overdue amount herein at the rate of 3% per month." The promissory note is an acknowledgment of a debt and commitment to repay it on the date and under the conditions that the parties agreed on.[43] It is a valid contract absent proof of acts which might have vitiated consent.[44]

The question is whether or not the reference to the penalty charges in the promissory note constitutes substantial compliance with the disclosure requirement of the Truth in Lending Act.[45] The RTC and CA relied on the ruling in New Sampaguita as authority that the non-disclosure of the penalty charge renders its imposition illegal. But New Sampaguita is not attended by the same circumstances. What New Sampaguita disallowed, because it was not mentioned either in the disclosure statement or in the promissory note, was the unilateral increase in the rates of penalty charges that the creditor imposed on the borrower. Here, however, it is not shown that BPI increased the rate of penalty charge that it collected from the Yus. [46]

The ruling that is more in point is that laid down in The Consolidated Bank and Trust Corporation v. Court of Appeals,[47] a case cited in New Sampaguita. The Consolidated Bank ruling declared valid the penalty charges that were stipulated in the promissory notes.[48] What the Court disallowed in that case was the collection of a handling charge that the promissory notes did not contain.

The Court has affirmed that financial charges are amply disclosed if stated in the promissory note in the case of Development Bank of the Philippines v. Arcilla, Jr.[49] The Court there said, "Under Circular 158 of the Central Bank, the lender is required to include the information required by R.A. 3765 in the contract covering the credit transaction or any other document to be acknowledged and signed by the borrower. In addition, the contract or document shall specify additional charges, if any, which will be collected in case certain stipulations in the contract are not met by the debtor." In this case, the promissory notes signed by the Yus contained data, including penalty charges, required by the Truth in Lending Act. They cannot avoid liability based on a rigid interpretation of the Truth in Lending Act that contravenes its goal.

Nonetheless, the courts have authority to reduce penalty charges when these are unreasonable and iniquitous.[50] Considering that BPI had already received over P2.7 million in interest and that it seeks to impose the penalty charge of 3% per month or 36% per annum on the total amount due--principal plus interest, with interest not paid when due added to and becoming part of the principal and also bearing interest at the same rate--the Court finds the ruling of the RTC in its original decision[51] reasonable and fair. Thus, the penalty charge of 12% per annum or 1% per month[52] is imposed.

Three. As for the award of attorney's fee, it being part of a party's liquidated damages, the same may likewise be equitably reduced.[53] The CA correctly affirmed the RTC Order[54] to reduce it from 10% to 1% based on the following reasons: (1) attorney's fee is not essential to the cost of borrowing, but a mere incident of collection;[55] (2) 1% is just and adequate because BPI had already charged foreclosure expenses; (3) attorney's fee of 10% of the total amount due is onerous considering the rote effort that goes into extrajudicial foreclosures.

WHEREFORE, the Court DENIES the petition and AFFIRMS the Court of Appeals Decision in CA-G.R. CV 86577 dated January 23, 2008 subject to the RESTORATION of the penalty charge of 12% per annum or 1% per month of the amount due computed from date of nonpayment or November 25, 2001.


Carpio, Brion, Del Castillo, and Perez, JJ., concur.

[1] Rollo, p. 63: REM dated June 22, 1994 covering TCT 32890 and securing P5,562,000.00; REM dated July 14, 1997 covering TCT Nos. 32253, 32254, 34452, & 33241 and securing P1,712,000.00; REM dated March 31, 1998 covering TCT No. 47847 and securing P18,030,000.00.

[2] Id. at 63-64: REM dated November 29, 1996 covering TCT Nos. 40252, 40253, & 40254 and securing P13,825,000.00; REM dated June 17, 1997 covering TCT No. 44461 and securing P10,000,000.00; REM dated July 30, 1997 covering TCT No. 40247 and securing P1,600,000.00.

[3] Id. at 62-63.

[4] Id. at 72.

[5] Id.

[6] Id. at 78-82; 86-90.

[7] Id. at 97-101.

[8] Penned by Judge Pedro R. Soriao.

[9] Rollo, pp. 55-59.

[10] Records, pp. 136-144.

[11] Rollo, p. 66, par. 2.12 of complaint.

[12] Records, p. 137, par. 7 of answer.

[13] Rollo, p. 67, par. 2.13 of complaint.

[14] Id. at 68, par. 2.18 of complaint.

[15] Id., par. 2.19 of complaint.

[16] Id. at 69, par. 2.20 of complaint.

[17] Records, p. 139, par. 20 of answer.

[18] Rollo, p. 69, par. 2.21 of complaint.

[19] Records, p. 137, par. 10 of answer.

[20] Rollo, p. 67, par. 2.14 of complaint; records, p. 138, par. 12 of answer.

[21] However, according to the Minutes of Public Auction Sale submitted by the sheriff, another person submitted a bid of P1,150,000.00; records, p. 95.

[22] Rollo, p. 70, par. 2.24 of complaint; records, p. 138, par. 12 of answer.

[23] 413 Phil. 518 (2001).

[24] 449 Phil. 419 (2003).

[25] CA rollo, pp. 49-54.

[26] Records, pp. 136-144.

[27] Id. at 154-163; 175-179; 214-233; 249-258; 261-262.

[28] Id. at 270.

[29] CA rollo, pp. 51-52.

[30] Records, pp. 293-297.

[31] Id. at 294-296.

[32] Id. at 294.

[33] Id. at 298-314.

[34] Id. at 331-337.

[35] Rollo, pp. 41-51.

[36] Id. at 52-53.

[37] Rivera v. Solidbank Corporation, G.R. No. 163269, April 19, 2006, 487 SCRA 512, 535, cited in Bitanga v. Pyramid Construction Engineering Corporation, G.R. No. 173526, August 28, 2008, 563 SCRA 544, 560.

[38] RULES OF COURT, Rule 35, Sec. 5: Form of affidavits and supporting papers.--Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith.

[39] A.M. No. 03-1-09-SC, Guidelines to be Observed by Trial Court Judges and Clerks of Court in Conduct of Pre-trial and Use of Deposition-Discovery Measures, August 16, 2004.

[40] 479 Phil. 483 (2004).

[41] Barbasa v. Tuquero, G.R. No. 163898, December 23, 2008, 575 SCRA 102, 111.

[42] Par. (3), Section 3 of R.A. No. 3765 or the Truth in Lending Act; par. (h) of Central Bank Circular No. 158 defining the details mentioned in Section 4 of R.A. No. 3765.

[43] Dela Peña v. Court of Appeals, G.R. No. 177828, February 13, 2009, 579 SCRA 396, 413.

[44] Development Bank of the Philippines v. Perez, 484 Phil. 843, 853 (2004).

[45] United Coconut Planters Bank v. Beluso, G.R. No. 159912, August 17, 2007, 530 SCRA 567, 599.

[46] See Development Bank of the Philippines v. Arcilla, Jr., G.R. No. 161397, June 30, 2005, 462 SCRA 599.

[47] 316 Phil. 247 (1995).

[48] Id. at 258-259: The payment of penalty was provided for under the terms and conditions of the promissory notes for Loans B and C of George and George Trade, Inc. The penalty actually imposed, being only 3% per annum of the unpaid balance of the principal of said Loan B, is considered reasonable and proper.

[49] Supra note 46, at 609-610.

[50] State Investment House, Inc. v. Court of Appeals, 413 Phil. 518, 523 (2001); CIVIL CODE, Article 1229. The judge shall equitably reduce the penalty when the principal obligation has been partly or irregularly complied with by the debtor. Even if there has been no performance, the penalty may also be reduced by the courts if it is iniquitous or unconscionable; Article 2227: Liquidated damages, whether intended as an indemnity or penalty, shall be equitably reduced if they are iniquitous and unconscionable.

[51] CA rollo, p. 62.

[52] Ong v. Roban Lending Corporation, G.R. No. 172592, July 9, 2008, 557 SCRA 516, 525, citing United Coconut Planters Bank v. Beluso, G.R. No. 159912, August 17, 2007, 530 SCRA 567, 590, 604-605; State Investment House, Inc. v. Court of Appeals, supra note 50.

[53] Co v. Admiral United Savings Bank, G.R. No. 154740, April 16, 2008, 551 SCRA 472, 482.

[54] Records, pp. 334-336.

[55] New Sampaguita Builders Construction, Inc. v. Philippine National Bank, supra note 40, at 509-510.

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