ARDIENTE vs PROVINCIAL SHERIFF

TOPIC: FORECLOSURE OF REAL ESTATE MORTGAGE

DOCTRINE:
- the issue of lack of publication of notice cannot be raised for the first time on appeal.
- it is a well-settled rule that statutory provisions governing publication of notice of mortgage foreclosure
sales must be strictly complied with, and that even slight deviations therefrom will invalidate the notice
and the sale at least voidable.

FACTS:
- In mid-Nov 1979, the spouses Rustico Ardiente and Asuncion Paloma, obtained a loan in the amount of
P100,000 from the Peninsula Development Bank at its main office at Lucena City, to be amortized in six
years
- To secure the payment of the loan, the Ardientes executed in favor of the bank a Real Estate Mortgage
on Nov 14, 1979 over a parcel of land situated in Quezon and another three parcels of land in Quezon
- Out of the proceeds of the loan, the Ardientes purchased a mini bus amounting to P81,875
- On August 1980, the bust met an accident which sustained heavy damages and rendered the Ardientes
unable to meet their obligation to the bank
- The Ardientes were later granted by the bank an additional loan of P46,000 for which they executed an
Oct 29 198 promissory note, the Real Estate Mortgage was amended
-Ardientes failed to settle the name notwithstanding demands fo the payment of their obligation
- The bank extra-judicially foreclosed the mortgage and the parcels of land covered thereby were sold at
public action to the bank which was the highest bidder
- The bank later notified the Ardientes by letter of February 24, 1984 that they had one (1) year from
November 11, 1983 or up to November 11, 1984 to redeem the foreclosed mortgage
- on November 9, 1984, the spouses Rustico and Suncion Ardiente filed before the Regional Trial Court
(RTC) of Quezon at Gumaca a complaint, for Annulment of Auction Sale with Preliminary Injunction and
Damages, on the ground that it was the defendant who had violated the Real Estate Mortgage and that the
requisite of notifying the mortgagors of the intended extra-judicial foreclosure sale was not be complied
with. Thus, the Foreclosure sale should be annulled.
- Respondent then answered "that petitioners were duly notified of the extra-
judicial foreclosure and publicauction sale. There was sufficient notice and publication served to all conc
ern[ed] of said public auction sale of the properties offered as collaterals"
- Spouses amended the Complaint alleging that the purchase price of the mortgaged parcels of land was
so grossly and greatly inadequate and the foreclosure sale should be annulled.
- RTC declared the foreclouse sale null and void. No documentary exhibits of such publication of notice
of public auction sale in a newspaper supported by publisher's affidavit were ever submitted by
respondent Bank
- CA reversed the decision of the RTC after finding the argument of the defendant bank that the lack of
required notice and publication of the extra-judicial foreclosure of mortgage was not averred in the
complaint, hence, cannot be the basis of an adverse judgment

ISSUE:
Whether or not the extra-judicial foreclosure of mortgage was null and void for absence of personal notice
to the petitioners as mortgagors?

RULING: (NO)
- personal notice to the mortgagor in extra-judicial foreclousre proceedings is not necessary, hence, not a
ground to set aside the foreclosure sale
- it is a well-settled rule that statutory provisions governing publication of notice of mortgage foreclosure
sales must be strictly complied with, and that even slight deviations therefrom will invalidate the notice
and the sale at least voidable.
- Despite petitioner's non -allegation of lack of publication of notice of foreclosure in their Complaint, the
bank pleaded in its Answer (1) that petitioners were duly notified of the extrajudicial foreclosure and
public auction sale and [t]here was sufficient notice and publication served to all concern[ed] of said
public auction sale, and (2) that it and the Office of the provincial Sheriff fully compl[ied] with the
requirements of law under Act 3135, more specifically with regard to notices of the public auction as well
as the extra-judicial foreclosure in accordance with law.
- Yet petitioners never refuted in their Reply and Answer to Counterclaim such defense of the bank nor
presented evidence before the trial court to disprove the same
- In fact, in its Comment on petitioners Formal Offer of Evidence before the trial court, the bank, passing
on Exhibit D its letter to petitioners advising them that they had one year from November 11, 1993 to
exercise their right of redemption, stated that said exhibit was admitted with the qualification as to the
purpose to the effect that said extra-judicial foreclosure was filed in accordance with law and that all
requirements of said law were complied with and that plaintiffs were duly notified of said proceedings.
- Despite the banks repeated claim that the statutory requirements governing extra-judicial foreclosure
had been complied with, the banks plea of lack of publication of notice of foreclosure was not raised by
petitioners either in the Amended Complaint or in the Reply and Answer to Counterclaim.
- the issue of lack of publication of notice cannot be raised for the first time on appeal.

petitioner presented no evidence before the trial court to prove the absence of publication of the notice des
pite the fact that private respondents, in their Answer, squarely pleaded as a defensethe foreclosure sale a
nd petitioners receipt of the notice of the sale which was published in a newspaper of general circul
ation. That the lack of publication of the notice of foreclosure was never raised in issue by petitioner
and that it is not within the issues framed by the parties in the trial court are then too obvious.