Rem V Antichresis Dec 17 2020

REM V ANTICHRESIS DEC 17 2020
Similarities
Anti-Creditor always in poss of the immovable
REM-cred not required; ordinarily not actually entitled unless expressly stipulated
Distinguish:
To be anti, there must be agreement that cred acquires fruits to apply it to the principle, (may
be proven by parole, not covered by SoF) if not then REM not anti; that is why cred is always in
poss
Debtor cannot demand return of the prop unless only is paid in full
ANTI-amt of principal and interest of the loan must be specified in writing; anti is accessory that
is why principal and interest in writing (formality)
Required is that amt and interest in writing only, can be done in the loan itself OR anti; loan
may be oral so for the anti to be valid specify the principal and interest in writing this is the only
time that anti NEEDS to be in writing
Not covered by SoF;
REM
Creating real rights required to be in public doc; if not, valid still, enforceable still. Requirement
is not for the purpose of validity of enforceability
Not covered by SoF;
But to be a real right, must be recorded to the Reg of Prop to bind the whole world
TRANSACTIONS OVER REAL PROP COVERED BY SOF

SALE OF REAL
LEASE OF MORE THAN 1 YR
EXPRESS TRUST OVER IMMOVABLE
PERFECTION:
BOTH are CONSENSUAL
CC does not state that anti is a real one
Real contracts mentioned by law: Commodatum, mutuum, pledge and deposit
Anti- delivery of the immovable is an obli created upon perfection that why such obli may be
compelled.
CONTRACTS DENOMINATED AS Assignment of Prop (Instead of REM)

Absolute of Conveyance: check the consideration is the payment of price certain in money or
equivalent then SALE. IF consi is rendition of service. Innominate; if another prop, practically
barter.
If not abso conveyance, like a security, then REM.
CHECK THE PROVISIONS: Assignment might be trying to circumvent prohibition against pactum
commissorium.
If there is an agreement that Sum not paid on a specified period, auto appropriation of the
collateral.
If collateral is personal prop: then covered by Personal Securities Act
Nature of Obli:
BOTH:
Principal obli MUST BE VALID OBLI, included voidable, unenforceable obli; what it cannot secure
is a void obli. Because accesspry contract only; life is dependent upon the principal, no life of its
own. Can be principal obli may be natural obli. Obli being secured may be condi, or with a
period.
AMT SECURED:
GR: AMT SECURED IS THAT WHAT IS PROVIDED FOR IN THE MORTGAGE CONTRACT
How about the future indebtedness? Yes. IF expressly provided for in the contract.
BLANKET MORTGAGE CLAUSE/DRAGNET CLAUSE IS ALLOWED BY THE CC.
CONTINUING collateral/SECURITY CONTRACT OF REM AND ANTI
Parties can also agree that the contract will stand so long as debtor has debt.
Allowed because CC ALLOW FUTURE INDEBTEDNESS
What if future indebtedness is secured by another REM with a diff prop?
Whee the subsequent loand are not covered by another security, those future obli are secured
by REM that contains a dragnet clause; but those subsequent ones coveed bycollaterals, the
previous dragnet clause shall cover only the deficiency
So, foreclose first then the deficiency if any shall be covered by the previous dragnet clause in
the previous REM.
REM
Mortgagor must be the real owner of the prop mortgaged because in case of default:
foreclosed. So the prop will be transferred to the highest bidder. OW REM OR ANTI IS VOID.
XPT: Mortgagee in GF, mortgage still valid. MORTGAGE IN GF.
Basis: TORRENS
If registered in the name of mortgagor, mortgage is allowed to rely only from the four corners
of the title, even if later on it turns out, mortgagor is not the owner.
Not allowed to rely on the 4 corners:
1. If there is a fact known to him/her that should have aroused suspicion;
2. If mortgagee is a banking, finance ins or GSIS, they are not allowed to rely on such,
required a higher diligence because they are dealing with money not their own;
3. Individuals or entities engaged in the biz of real estate.
Law allows 3rd person to secure the obli of someone else with his/her own prop-3 rd PARTY
MORTGAGE/ACCOMODATION MORTGAGE
Here, mortgagor is not the principal debtor but must own the prop she mortgages. Does not
become a co-debtor. Liability is only to the extent of the value of the prop he offered, but only
to that extent. If not sufficient to pay the entire indebtedness, 3 rd party will no longer be liable.
Not binding collaterally, not surety, not co debtor. Cannot be liable more than that.
*banks will make you surety, co-debtor—so be careful on what signing these kinds of contracts.
But If all props were foreclosed, including the debtor’s, are you allowed to redeem ONLY YOUR
PROP? YES.
NOT INDIVISIBLE ANYMORE ONCE THE MORTGAGE IS FORECLOSED. Banks will usually say NO,
that’s SOP. JUST IN CASE IT WILL DISSUADE TO PERSUE OR NOT KNOW RIGHTS.
CHECK RECORDING
If unregistered,
If rem is registered in Reg of Prop, real right is created
Real right over an immovable becomes real prop.
INDIVISIBILITY
Check recording
Once mortage is extinguished, N/A
N/A to the right of redemption of accommodation mortgagor.
PROHIBITIONS:
Pactum commisorium
Essence: ownership will auto pass to the cred in case of nonpayment by debtor
Elements
Circumventing:
1. Pactum comm is sometimes denominated as PACTO DE RETRO SALE, AND THERE WILL
BE A “REDEMPTION PERIOD” BUT ACTUALLY THE PERIOD TO REPURCHASE IS THE
PERIOD TO PAY; auto appropriation
Equitable mortgage
2. DACION EN PAGO-looks like sale; but not really an absolute conveyance. And obli not
extinguished here but continues
3. Assignment of Real Prop
Prohibitions:
1. Law prohibits any stipulation mortgagor from alienating the prop during the existence of
mortgage, such prohibition is VOID. Even if stipulation says, “without consent of cred.”
Senior encumbrance- 1st mortgage registered. priority

Junior encumbrance-later mortgage registerer.
Agreement that cred’s consent is needed in case the prop is mortgaged again , valid
stipulation.
REMEDIES:
ALTERNATIVE:
1. COLLECTION SUIT FOR PRINCIPAL OBLI- meaning collateral was not pursued, as such
collateral prop is released from the mortgage. Becomes FREE PROP and thus loses
priority.
2. FORECLOSURE OF MORTGAGE
JUDICIAL
EXTRA-JUDICIAL- allowed if mortgagee has SPA to undertake
Cred-mr is a banking institution SEC 47 GEN BANL LAW
Cre mr- -3025 extra or Roc if judicial
Prescriptive period for foreclosure

10yrs from right of action accrues -not the date of mortgage contract
Reckoning: default
Foreclosure by Banking Insitution:

Right of Redemption: yes if BI is cred mortgagee, whether the j or ej foreclosure.
Period of redemption:
If debtor mortgagor natural: 1 yr
If banking: 3 mos from sale or if cert is registered, right of redemption is already gone.
CIR V UCPB
For purposes of counting 1yr redemdtion period natural or 3 mos if mortgagor is from the time
of issuance of sale, Date of confirmation of sale,
REDEMPTION PRICE:
MR IS BANK: THAT WHICH IS AGREED UPON IN THE MORTGAGE CONTRACT
Usually bank will ask: Unpaid bal, interest, penalties, surcharges, atty fees 25% of loan usually,
expense of foreclosure because GBL allows bank to stipulate those in the mortgage
contract(Sec. 47 GBL)
CRMR is not a bank, right of redemption, period is only when EJ foreclusre. 1yr both nat and
juridical; from reg of cert of sale
Judicial For and

CrMr not a bank, no right of redemption but equity of redemption
90-120d
Redemption price if CRME is bank: RoC: amount of bid price + 1% per annum
Question consti of S47 GBL, equal protection clause because what is the difference if the the
crmr is a bank.
ANTI
Non payment of obli:
Collection suit-to the principal, collateral released.
Foreclusre
Only judicial forecloruse only
No right of redemption only EQUITY since RoC.

Rem V Antichresis Dec 17 2020

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REM V ANTICHRESIS DEC 17 2020

TRANSACTIONS OVER REAL PROP COVERED BY SOF

CONTRACTS DENOMINATED AS Assignment of Prop (Instead of REM)

If collateral is personal prop: then covered by Personal Securities Act

What if future indebtedness is secured by another REM with a diff prop?

Senior encumbrance- 1st mortgage registered. priority

Prescriptive period for foreclosure

Foreclosure by Banking Insitution:

Judicial For and

Only judicial forecloruse only

No right of redemption only EQUITY since RoC.

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