430 Phil. 170; 99 OG No. 51, 7915 (December 22, 2003)
QUISUMBING, J.:
The trial court then rendered judgment in favor of petitioner, granting its prayers under all its twenty-seven causes of action. It, however, failed to order that the property mortgaged by respondent Filkor be foreclosed and sold at public auction in the event that Filkor fails to pay its obligations to petitioner.x x x
It appears that the only reason defendants deny all the material allegations in the complaint is because the documents attached thereto are mere photocopies and not the originals thereof. Section 7, Rule 8 of the Rules of Court allows copies of documents to be attached to the pleading as an exhibit. Defendants are, therefore, deemed to have admitted the genuineness and due execution of all actionable documents attached to the complaint inasmuch as they were not specifically denied, pursuant to Section 8 of the Rule 8 of the Rules of Court.
In the case at bar, there is clearly no substantial triable issue, hence, the motion for summary judgment filed by plaintiff is proper.
A summary of judgment is one granted by the court upon motion by a party for an expeditious settlement of the case, there appearing from the pleadings, depositions, admissions and affidavits that there are no important questions or issues of fact involved (except as to the amount of damages) and that, therefore, the moving party is entitled to a judgment as a matter of law (Sections 1, 2, 3, Rule 35, 1997 Rules of Civil Procedure).
The court having taken into account the pleadings of the parties as well as the affidavits attached to the motion for summary judgment and having found that there is indeed no genuine issue as to any material fact and that plaintiff is entitled to a summary of judgment as a matter of law, hereby renders judgment for the plaintiff and against the defendants, ordering said defendants jointly and severally to pay plaintiff, as follows…[9]
Plaintiff, in opting to file a civil action for the collection of defendants obligations, has abandoned its mortgage lien on the property subject of the real estate mortgage.Hence, the present petition, where petitioner ascribes the following error to the trial court.
The issue has already been resolved in Danao vs. Court of Appeals, 154 SCRA 446, citing Manila Trading and Supply Co. vs. Co Kim, et al., 71 Phil. 448, where the Supreme Court ruled that:The rule is now settled that a mortgage creditor may elect to waive his security and bring, instead, an ordinary action to recover the indebtedness with the right to execute a judgment thereon on all the properties of the debtor including the subject matter of the mortgage, subject to the qualification that if he fails in the remedy by him elected, he cannot pursue further the remedy he has waived.WHEREFORE, the Partial Motion for Reconsideration filed by the plaintiff of the Court’s Order dated March 12, 1999 is hereby denied for lack of merit.
SO ORDERED.[10]
THE REGIONAL TRIAL COURT OF CAVITE CITY ERRED IN RULING THAT PETITIONER HAD ABANDONED THE REAL ESTATE MORTGAGE IN ITS FAVOR, BECAUSE IT FILED A SIMPLE COLLECTION CASE.[11]The resultant issue is whether or not petitioner’s complaint before the trial court was an action for foreclosure of a real estate mortgage, or an action for collection of a sum of money. In addition, we must also determine if the present appeal was correctly lodged before us rather than with the Court of Appeals.
183. To secure payment of the obligations of defendant Corporation under the First to the Twenty-Seventh Cause of Action, on February 9, 1996, defendant Corporation executed a Real Estate Mortgage by virtue of which it mortgaged to plaintiff the improvements standing on Block 13, Lot 1, Cavite Export Processing Zone, Rosario, Cavite, belonging to defendant Corporation covered by Tax Declaration No. 5906-1 and consisting of a one-story building called warehouse and spooling area, the guardhouse, the cutting/sewing area building and the packing area building. (A copy of the Real Estate Mortgage is attached hereto as Annex “SS” and made an integral part hereof.)[12]This allegation satisfies in part the requirements of Section 1, Rule 68 of the 1997 Rules of Civil Procedure on foreclosure of real estate mortgage, which provides:
SECTION 1. Complaint in action for foreclosure. – In an action for the foreclosure of a mortgage or other encumbrance upon real estate, the complaint shall set forth the date and due execution of the mortgage; its assignments, if any; the names and residences of the mortgagor and the mortgagee; a description of the mortgaged property; a statement of the date of the note or other documentary evidence of the obligation secured by the mortgage, the amount claimed to be unpaid thereon; and the names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action.In Paragraph 183 above, the date and due execution of the real estate mortgage are alleged. The properties mortgaged are stated and described therein as well. In addition, the names and residences of respondent Filkor, as mortgagor, and of petitioner, as mortgagee, are alleged in paragraphs 1 and 2 of the complaint.[13] The dates of the obligations secured by the mortgage and the amounts unpaid thereon are alleged in petitioner’s first to twenty-seventh causes of action.[14] Moreover, the very prayer of the complaint before the trial court reads as follows:
WHEREFORE, it is respectfully prayed that judgment be rendered:Petitioner’s allegations in its complaint, and its prayer that the mortgaged property be foreclosed and sold at public auction, indicate that petitioner’s action was one for foreclosure of real estate mortgage. We have consistently ruled that what determines the nature of an action, as well as which court or body has jurisdiction over it, are the allegations of the complaint and the character of the relief sought.[16] In addition, we find no indication whatsoever that petitioner had waived its rights under the real estate mortgage executed in its favor. Thus, the trial court erred in concluding that petitioner had abandoned its mortgage lien on Filkor’s property, and that what it had filed was an action for collection of a sum of money.x x x
2. Ordering that the property mortgaged be foreclosed and sold at public auction in case defendants fail to pay plaintiff within ninety (90) days from entry of judgment.x x x[15]
SEC. 2. Judgment on foreclosure for payment or sale.- If upon the trial in such action the court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs, and shall render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period of not less than ninety (90) days nor more than one hundred twenty (120) days from entry of judgment, and that in default of such payment the property shall be sold at public auction to satisfy the judgment. (Italics supplied.)Accordingly, the dispositive portion of the decision of the trial court dated March 12, 1999, must be modified to comply with the provisions of Section 2 of Rule 68 of the 1997 Rules of Civil Procedure. This modification is subject to any appeal filed by respondents of said decision.
SECTION 1. Filing of petition with Supreme Court. – A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. (Italics supplied).There is no dispute with respect to the fact that when an appeal raises only pure questions of law, this Court has jurisdiction to entertain the same.[18]