Republic of the Philippines

REGIONAL TRIAL COURT OF LANAO DEL NORTE

12th Judicial Regional
BRANCH 02

MARIA SANTOS,
Plaintiff,
CIVIL. CASE NO. L-12345
FOR: Declaration for Nullity of
Real Estate Mortgage
- versus -

ABC BANKING CORPORATION

Accused.
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COUNTER AFFIDAVIT

I, MARIA SANTOS, of legal age, married, Filipino and a resident of Purok

3 Ditucalan, Iligan City after having been duly sworn to in accordance with law,
hereby depose and say:

1. That I am the plaintiff of this case;

2. That I admit the allegations that I executed a Real Estate Mortgage

dated and notarized on January 2, 2002 in favor of ABC Banking Corp as security
for payment of loan I obtained with the bank;

3. That I vehemently deny the allegations under paragraph 24, 25, and 28 of
defendant ABC Banking Corporation through the Judicial Affidavit filed by
Bank Manager Juan de la Cruz, the truth being that:

a. That the bank did not inform or even notify me through demand letter
that my loan was due and demandable; no proof of demand letter issued by
the bank as evidence to the case;
b. That the issuance of Notice of Extra Judicial Foreclosure is null and
void because it did not comply with the essential requirements required by
law under RA 3135 particularly Sections 2 and 3 which states that:
SECTION 2. Said sale cannot be made legally outside of the province in which
the property sold is situated; and in case the place within said province in which the
sale is to be made is subject to stipulation, such sale shall be made in said place or in
the municipal building of the municipality in which the property or part thereof is
situated
SECTION 3. Notice shall be given by posting notices of the sale for not less
than twenty days in at least three public places of the municipality or city where the
property is situated, and if such property is worth more than four hundred pesos,
such notice shall also be published once a week for at least three consecutive weeks in
a newspaper of general circulation in the municipality or city.
 b.1 The bank did not present any evidence that the extra judicial
proceeding of the mortgaged property or the auction sale was done in the
city were the property is located. The questioned property is located in
Ditucalan, Iligan City, however, there was no notice of publication in a
newspaper of general circulation that is edited and published in this city.
The failure to publish the notice of auction sale as required by the
statute constitutes a jurisdictional defect which invalidates the sale (DBP
v. Aguirre, GR No. 144877, 07 Sept. 2001).
The notice and publication requirement are mandatory and failure to
comply is a jurisdictional defect that vitiates the foreclosure auction
sale.
Non-compliance with the notice and publication requirement in Act
3135, as amended is a jurisdictional defect that vitiates the auction sale
(Tambunting v. CA, 167 SCRA 16).

c. As to par 28, the ABC Bank is not the lone bidder in this case because
there was absence of notice and publication. The defendant failed to adduced
evidence that notice and publication were duly complied with. Accordingly,
foreclosure auction sale is imbued with public policy considerations and any
waiver on the notice and publication requirements would be inconsistent
with the intent and letter of Act 3135, as amended (PNB v. Nepomuceno,
GR No. 1139479, 27 December 2002).

Publication is therefore required to give the foreclosure sale a reasonably

wide publicity such that those interested might attend the public sale. To
allow the parties to waive this jurisdictional requirement would result in
converting into a private sale what ought to be public auction (Ouano v. CA,
GR No. 129279, 04 March 2003).

4. That I admit allegations that I filed a complaint seeking declarations of

nullity of mortgage Lot No. 10 but deny the the reason that we are not the
owners of the mortgaged property because the TCT under which Lot 10 is part
thereof is titled under my name;

5. In fact, the basis of our claim is that the extra judicial foreclosure of the
mortgaged land was properly complied with under RA 3135.

Affiant further sayeth naught.

IN WITNESS WHEREOF, I have hereunto affixed my signature this

20 day of April 2016 at Iligan City, Philippines.
th

MARIA SANTOS
Plaintiff
 REPUBLIC OF THE PHILIPPINES )
CITY OF ILIGAN ) s.s.

SUBSCRIBED AND SWORN TO before me in the City of Iligan City on

this 20th day of April 2016, affiant exhibiting before me her SSS ID NO.
12345677 issued on January 29, 2015 at Iligan City Philippines.

(Sgd.) ATTY. HARRIET T. VIRTUDAZO

Counsel for the Plaintiff
San Miguel St., Brgy.
San Miguel, Ilig an City
PTR No. 98765
Issued at Iligan City On January 2, 2017
IBP No. 987654 1-2-16
Roll No. 14344

Copy furnished: (by personal service)

ATTY. LOVELY LASAY

Counsel for the Defendant