Fortaleza v Lapitan 1.
Whether or not the subject property is exempt from forced sale because it is a family
FACTS:
Spouses Charlie and Ofelia Fortaleza obtained a loan from spouses Rolando and
Amparo Lapitan in the amount of P1.2 million subject to 34% interest per annum
and executed on a Deed of Real Estate Mortgage over their residential house and lot
situated in Barrio Anos, Municipality of Los Baos, Laguna
When spouses Fortaleza failed to pay, the creditors applied for extrajudicial
foreclosure of the Real Estate Mortgage and the public auction sale of the subject
property was set on May 9, 2001.
At the public auction sale, Rolando and Amparos son Dr. Raul Lapitan and his wife
Rona emerged as the highest bidders and were issued a Certificate of Sale on
November 15, 2002.
The one-year redemption period expired without the spouses Fortaleza redeeming
the mortgage. Thus, spouses Lapitan executed an affidavit of consolidation of
ownership on November 20, 2003
Despite the cancellation of the previous TCT and the issuance of the new one, the
spouses Fortaleza refused spouses Lapitans formal demand to vacate and surrender
possession of the subject property
Spouses Lapitan filed a ex parte petition for the issuance of writ of possession with
the RTC of Calamba City claiming that as the new registered owner, they are entitle
of the possession of the subject property
Spouses Fortaleza questioned the validity of the real estate mortgage and the
foreclosure sale.
RTC ordered the issuance of a writ of possession
Spouses Fortaleza moved for reconsideration, claiming that the subject property is
their family home and is exempt from foreclosure sale. However, RTC denied their
motion and the branch clerk of court issued the Writ of Possession and the sheriff
served the Notice to Vacate against spouses Fortaleza
Spouses Fortaleza elevated the case to the CA but the appeal was dismissed
CA stressed that any question regarding the regularity and validity of the mortgage
or its foreclosure cannot be raised as a justification for opposing the issuance of the
writ of possession since the proceedings is ex parte and non-litigious. Moreover,
until the foreclosure sale is annulled, the issuance of the writ of possession is
ministerial.
ISSUES:
home?
JUDGMENT: PETITION IS DENIED
HOLDING:
No, spouses Fortalezas argument that the subject property is exempt from forced sale
because it is a family home deserves scant consideration
As a general rule, under Article 153 of the Family Code, from the time of its
constitution and as long as any of its beneficiaries actually resides there, the family
home continues to be such and is exempt from execution, forced sale or attachment
except as hereinafter provided and to the extent of the value allowed by law.
However, Article 155 provides the exemption to the general rule. And Art. 155(3)
explicitly allows the execution, forced sale or attachment of the family home for
debts secured by mortgages on the premises before or after such constitution."
In the present case, spouses Fortaleza voluntarily executed a deed of Real Estate
Mortgage over the subject property which was even notarized by their original
counsel of record.
Even assuming that the property is exempt from forced sale, spouses Fortaleza did
not set up and prove to the Sheriff such exemption from forced sale before it was
sold at the public auction.
Honrado v. Court of Appeals
While it is true that the family home is constituted on a house and lot from the
time it is occupied as a family residence and is exempt from execution or
forced sale under Article 153 of the Family Code, such claim for exemption
should be set up and proved to the Sheriff before the sale of the property at
public auction. Failure to do so would estop the party from later claiming the
exemption. As this Court ruled in Gomez v. Gealone.
Gomez v Gealone
Although the Rules of Court does not prescribe the period within which to
claim the exemption, the rule is, nevertheless, well-settled that the right of
exemption is a personal privilege granted to the judgment debtor and as such, it
must be claimed not by the sheriff, but by the debtor himself at the time of the
levy or within a reasonable period thereafter
Spouses Fortalezas reliance on the cases of Tolentino and De Los Reyes in praying
for the exercise of the right of redemption even after the expiration of the one-year
period.
In Tolentino, it was held that an action to redeem filed within the period of
redemption, with a simultaneous deposit of the redemption money tendered to
the sheriff, is equivalent to an offer to redeem and has the effect of preserving
the right to redemption for future enforcement even beyond the one-year period.
In De Los Reyes, the Court allowed the mortgagor to redeem the disputed
property after finding that the tender of the redemption price to the sheriff was
made within the one-year period and for a sufficient amount.
Circumstances in present case were different. Spouses Fortaleza deemed to
have have waived or abandoned their right of redemption by not filing an
action or making a formal offer to redeem the subject property accompanied by
an actual and simultaneous tender of payment. As well as for allowing the o1 -
 year period to lapse from the registration of the certificate of sale without
redeeming the mortgage. For all intents and purposes, spouses Fortaleza.
Josef v Santos
Facts:
Albino Josef was found liable to Santos in the amount of P404,836.50 w/ interest of 12%
p.a. from Jan. 9, 1995 until full payment.
o This was because he failed to pay for shoe materials he bought on credit from
Santos.
Santos moved for issuance of writ of execution.
Josef filed opposition saying:
o Personal properties belonged to his children and not him.
o The Marikina property was their family home thus exempt from execution
RTC ignored opposition and granted motion for execution
o Several personal properties subject of the writ were auctioned off.
o As well as the house and lot claimed to be their family home.
o Santos won in the auction and Certificate of Sale was then issued in his favor.
Josef filed for certiorari before CA.
o CA denied petition for failure of Josef to file motion for reconsideration.
Thus, Josefs current petition w/ SC.
Judgement: Petition Granted. CA resolutions reversed and set aside. Writ of execution
declared void.
Trial court directed to:
a) conduct solemn inquiry on nature of real property to determine whether its Josefs
family home, and
b) conduct inquiry into ownership of all other properties levied upon and sold
Issue and Holding:
Whether or not the levy and sale of the personal properties as well as the attachment and sale
on public auction of the real property claimed as their family home is legal? NO
TC should have made earnest determination of the truth of Josefs claim that the house
and lot he and his family resided in was their family home.
TC should have observed ff. procedure:
1. Determine if petitioners obligation to respondent falls under either of the exceptions
under Article 155 of the Family Code;
2. Make an inquiry into the veracity of petitioners claim that the property was his
family home; conduct an ocular inspection of the premises; an examination of the
title; an interview of members of the community where the alleged family home is
located, in order to determine if petitioner actually resided within the premises of the
claimed family home; order a submission of photographs of the premises,
depositions, and/or affidavits of proper individuals/parties; or a solemn examination
of the petitioner, his children and other witnesses. At the same time, the respondent
is given the opportunity to cross-examine and present evidence to the contrary;
3. If the property is accordingly found to constitute petitioners family home, the court
should determine:
a) if the obligation sued upon was contracted or incurred prior to, or after, the
effectivity of the Family Code;
b) if petitioners spouse is still alive, as well as if there are other beneficiaries
of the family home;
c) if the petitioner has more than one residence for the purpose of
determining which of them, if any, is his family home; and
d) its actual location and value, for the purpose of applying the provisions of
Articles 157 and 160 of the Family Code.
TCs failure to observe proper procedures is unjustified.
Also for the personal properties, TC did not make any effort in determining who really
owned them.
TC had enough time to conduct crucial inquiry that would have spared Josef from
seeking relief from SC.
Since the order is void, writ of execution based on it is also void.
Respondent should also observe procedure in Art. 160 of FC, to obtain order for the sale
on execution of the petitioners family home, if so, and apply the proceeds less max
amount allowed by law under Art. 157 FC which should remain w/ petitioner for
rebuilding his family home to his judgement credit
o But what TC and respondent did was to ignore Josefs argument.
Although, Josefs resort to certiorari in CA was belated and w/o requisite motion for
reconsideration, considering gravity of issue, procedural infirmities must take back seat
to substantive questions.
OLIVA-DE MESA V. ACERO JR.
I. Facts
1. Subject property is a parcel of land in Bulacan which petitioners
purchased, constructed a house in, and eventually occupied as their family
home. The land was formerly covered by TCT T-76.725 (Transfer
Certificate of Title)
2. Petitioner Araceli obtained a loan from Respondent Claudio an amount of
Php 100,000, which was secured by mortgage over subject property.
But Petitioner was unable to pay loan.
3. R filed complaint with RTC; the RTC ordered P to pay the amount owned.
4. March 15, 1993. A writ of execution was issued and Respondent Sherriff
Samonte levied upon the subject property.
5. Subject property was then sold in public auction, wherein R was the
highest bidder. R leased back property to P.
6. Meanwhile Final deed of sale over subject property was issued to R. And
the Register of Deeds cancelled TCT T-76.725 and issued TCT T-
221755 in Rs favor.
7. P was unable to pay rent. In response to this R filed complaint for
ejectment (ejectment case) with MTC. MTC ruled in favor of R and
ordered P to vacate in recognition of TCT-221755.
8. Extra procedural history:
A. P appealed MTC decision to RTC dismissed.
B. P filed petition for review with CA. denied.
C. P filed another complaint with RTC dismissed
1. This was to cancel TCT T-221755 (TCT T-221755
case)
2. Herein they brought up that subject property is a
family home and exempt from execution and could
not have been validly levied for purposes of
satisfying the writ of execution
 3. RTC dismissed because a mortgage was constituted a.
Subject property falls into the third category
over subject property (which provides an exception of property constituted mentioned above
to the general rule of family homes) 3. Thus subject property is a family home
D. P sought reconsideration denied. B. Famimimim
E. P appealed in CA dismissed. 1. Petitioners should have asserted the subject property
F. P sought reconsideration denied. as a family home and exempt from execution at the
time it was being levied.
9. Thus this petition. Which R assails as forum shopping. a. [Case Law] Honrado v CA: at no other time
II. Issues can the status of a residential house as a
1. WoN the P are guilty of forum shopping No family home can be set up and proved but
2. WoN lower courts erred in refusing to cancel Rs Torrens Title TCT T- before the sale at pubic auction.
221755 over subject property No b. [Case Law] Spouses Versola v CA: right to
III. Ruling: Petition denied. exemption or force is private privilege of
IV. Ratio debtor and must not be claimed by sheriff
1. No Forum Shopping but by debtor himself
A. Forum shopping: when as a result of adverse opinion or even 2. Petitioner was unable to prove to sheriff the exemption
just the anticipation of one in a certain forum, the party seeks before the public auction, and are thus now barred
more favorable judgment in another forum from raising it now
1. Therefore: there is forum shopping when two or more 3. Thus: their negligence or omission to assert their
actions involve the same case (transactions, essential right within a reasonable time gives rise the
facts, circumstances, issues, subject matter, causes of presumption that they have waived such
action) V. Ruling: WHEREFORE PETITION DENIED
B. Primordial issues and reliefs differ in ejectment case and case
to cancel TCT-221755.
1. Ejectment case: who has better right of possession
over subject property (while ownership is raised here,
it is not the primordial issue)
2. TCT-211755 case: ownership
C. Thus no forum shopping
2. The CA did not err in dismissing ps complaint for nullification of
TCT T-221755
A. The subject property is a family home
1. The court summarized the rules on constitution of
family homes for exemption from execution:
a. If family home constructed before Family
Code, it must be constituted judicially or
extra-judicially in accordance with Civil
Code
b. If constructed after Family Code, they are
automatically family houses and thus
exempt from execution, and lasts as long as
any of its beneficiaries actually resides
therein
c. If not judicially or extra-judicially
constituted as family home prior to FC, but
existing thereafter, are considered as family
homes by operation of law and are
prospectively entitled to the benefits
accorded to a family home under FC
2. Property became a family home in January 1987
(before FC)