Extrajudicial Foreclosure of Property Subject of a Real Estate Mortgage

In the extrajudicial foreclosure of property subject of a real estate mortgage, Act 3135 (“An Act to Regulate the Sale of Property Under Special Powers Inserted in or Annexed to Real Estate Mortgages”) is explicit and definite about the special power to sell the property being required to be either inserted in or attached to the deed of mortgage. Section 1 of Act 3135 provides:

“Section 1. When a sale is made under a special power inserted in or attached to any real estate mortgage hereafter made as security for the payment of money or the fulfillment of any other obligation, the provisions of the following section shall govern as to the manner in which the sale and redemption shall be effected, whether or not provision for the same is made in the power.”

Accordingly, to enable the extrajudicial foreclosure of a REM, the special power to sell must be either inserted in the REM itself or embodied in a separate instrument attached to the REM.

If no special power to sell is either inserted in the REM or attached to the REM the foreclosing mortgagee, cannot initiate the extrajudicial foreclosure, but must resort to judicial foreclosure pursuant to the procedure set forth in Rule 68 of the Rules of Court.

The requirement for the special power or authority to sell finds support in the civil law.

To begin with, because the sale of the property by virtue of the extrajudicial foreclosure would be made through the sheriff by the mortgagee acting as agents, there must be a written authority from the mortgagors-owners in favor of the former as their agents;

otherwise, the sale would be void.

Article 1874 of the Civil Code provides:

“Article 1874. When a sale of a piece of land or any interest therein is through an agent, the authority of the latter shall be in writing; otherwise, the sale shall be void.”

Secondly, considering that, pursuant to Article 1878, (5) of the Civil Code, a special power of attorney was necessary for entering “into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration,” the written authority must be a special power of attorney to sell.

What Are The Exclusive Properties Of Spouses In A Conjugal Partnership?

• Property purchased before the marriage and fully paid during the marriage remains to be a separate property of either spouse.

• In a Conjugal Partnership of Gains, all property acquired during the marriage is presumed to be conjugal unless the contrary is proved.

• Property bought on installments paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage.

In a Conjugal Partnership of Gains, the spouses place in a common fund the proceeds, products, and fruits and income of their separate properties and those acquired thereafter through their efforts or by chance.

Under the Family Code

The following shall remain exclusive property of the owner spouse:

1. That which is brought to the marriage as his or her own;

2. That which each acquires during the marriage by gratuitous title;

3. That which is acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses; and

4. That which is purchased with exclusive money of the wife or of the husband. (Art. 109, FC)

Property purchased before the marriage and fully paid during the marriage remains to be a separate property of either spouse. And, if a future spouse sold his property with right to repurchase before the marriage and reacquired it during the marriage, such property is still the exclusive property of said spouse. However, if the money he or she paid for the repurchase came from the conjugal assets, then, the said spouse must reimburse the conjugal partnership. Note, however, that the reimbursement shall be done at the liquidation of the conjugal partnership.

In case the property has been donated to or inherited by one of the spouses, the said property shall be an exclusive property of such spouse. Accordingly, if someone donates to a married couple a parcel of land, the said land will not be conjugal, but separate property of the spouse, each spouse owning one half of the property. And if a different proportion or designation of shares is made, such will be followed.

• Purchase of Property

In a Conjugal Partnership of Gains, when there is no showing as to when the property was acquired by a spouse, the fact that the title is in one of the spouse’s name, is an indication that the property belongs exclusively to the said spouse. Consequently, if a property is purchased partly with money of the wife and partly with conjugal money, the same is partly conjugal and partly exclusive.

• Presumption of Inclusion of Property In The Conjugal Partnership of Gains

In a Conjugal Partnership of Gains, all property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved. The presumption of conjugality of properties acquired by onerous title during the marriage arises regardless of the source of the funds used to acquire the same.

• Property on Installment

Property bought on installments paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage. And the property belongs to the conjugal partnership if such ownership was vested during the marriage. In either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the owner or owners upon liquidation of the partnership. (Art. 118, FC)

Returned OFW Challenges due To The COVID-19 Pandemic

The COVID-19 pandemic resulted in a 75 per cent reduction in deployment of Overseas Filipino Workers (OFWs) in 2020, which constitutes the lowest deployment number in over three decades.

Furthermore, the number of returning OFWs reached nearly 800,000 by the end of December 2020, according to the government’s statistics.

On 20 May 2021, The International Organization for Migration (IOM) Philippines launched the report, COVID-19 Impact Assessment on Returned Overseas Filipino Workers, which is based on interviews with over 8,000 returned OFWs.

The report, part of IOM’s global response to COVID-19 to better understand the challenges as well as the needs of migrant workers, shows that 67 per cent of the assessed OFWs’ decision to return was due to COVID-19, while a very significant 83 per cent of OFWs were unemployed for an average of three months post-arrival.

The report also shows that almost half of OFWs had a 60 per cent drop in their household income upon return.

“The ongoing global COVID-19 crisis and border restrictions continue to have an adverse impact on human mobility with migrant workers and their remittance-dependent communities being some of the most vulnerable groups,” said Kristin Dadey, IOM Philippines Chief of Mission.

“Understanding the impacts of COVID-19 on OFWs and their families is critical to identify emerging gaps in migration governance and international cooperation adhering to the Global Compact for Safe, Orderly and Regular Migration. Findings of the report could support key stakeholders in developing migrant-centered policies and programs with the most recent and relevant information,” continued Dadey.

As Coordinator and Secretariat of the United Nations Network on Migration in the Philippines, IOM has conducted various studies on the impact of COVID-19 on migration to support policy makers and has provided direct assistance to the government’s repatriation efforts.

The report seeks to further complement this initiative by informing future programmes on international recruitment, migrant worker protection in times of crises, and reintegration of returned OFWs.

Collected data is also used to map out returning OFW mobility flows and identify sociodemographic patterns of migration and needs, preferences, skills and experiences of returned OFWs.

“COVID-19 pandemic has presented new challenges for OFWs and highlighted their existing vulnerabilities. There is a particular need to leverage data and analysis collected into policies that will fill existing gaps in migrants’ welfare and safety,” said Gustavo Gonzalez, the UN’s Resident Coordinator and Chair of the UN Network on Migration in the Philippines, echoing the significance of the report.

Hans Cacdac, Overseas Workers Welfare Administration (OWWA) Administrator expressed his appreciation to IOM and the UN Network on Migration in the Philippines for its efforts and cited that the report is useful especially in responding to unforeseen crises such as the COVID-19 pandemic.

“The COVID-19 Impact Assessment on Returned Overseas Filipino Workers will be a key tool in the government’s formulation of future policies and programmes for OFWs,” he said.

The assessment and report were supported with funding from the Government of the Federal Republic of Germany and produced in partnership with the OWWA. (IOM)

COVID-19 Impact Assessment on Returned O

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Download • 39.25MB

Source: IOM