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ANSWER

1. Defendant, by counsel and to this Honorable Court respectfully states that:

2. Defendant admits that portion of par. 1 of the complaint regarding the names,
residences and status of the parties, but denies the rest thereof for lack of knowledge
sufficient to form a belief as to the truth thereof.

3. Assuming that the allegations in the complaint are true, the plaintiff is not a real
party-in-interest and, therefore, has no legal personality to institute the present
action for failure to attach an exhibit to prove that he is, indeed, the sole heir of Senior
de la Cruz.

4. Assuming arguendo that the plaintiff has such legal personality, and assuming
further that the subject property is part of the public domain, the plaintiff cannot now
invoke this defense to assail the validity of the mortgage contract that his predecessor-
in-interest has entered into, for the doctrine of estoppel would operate as a bar to a
party who seeks to renege or deny an act after obtaining benefit therefrom.

5. The property in question has been registered in the name of the bank since 4 October
1982 and the present complaint was brought only by the plaintiff on 21 September
2018 or approximately 36 years from said registration. Indeed, if the plaintiff were
really prejudiced or at least interested in the transaction involved which led to the
present situation, he should have filed a complaint outright instead of instituting the
same after the lapse of a long period time. Clearly, the doctrine of laches finds
application in this case. It bears emphasis that laches is founded on equity. It does not
penalize the inaction or sleeping on one’s right, but rather, it operates to avoid the
recognition of a right when to do so would result in a clearly inequitable situation.

6. The Plaintiff himself stated in par.5 of the complaint that the mortgagor Senior Dela
Cruz defaulted in his loan obligation, he cannot now adopt a contrary stance in par.28
by claiming that there was no default to begin with.

7. The real estate mortgage does not contain a Pactum Commissorium clause. A Pactum
Commissorium clause is an agreement or stipulation in a contract which provides for
the automatic appropriation by the creditor of the thing pledged or mortgaged
upon the failure of the debtor to pay the principal obligation. Here, it is apparent from
the pertinent portion of the mortgage contract, as stated in Par.29 of the complaint,
that the bank is only given the right to possess the subject property upon default by
the mortgagor. Undeniably, the mortgagee bank was not granted the power to own,
much less to appropriate or dispose of the property in question. The subject provision
in the mortgage contract merely confers the mortgagee bank the power to hold the
property until the mortgagor has satisfied his obligation.

8. Defendant denies the allegation of the Plaintiff that the sheriff acted without notice ,
hence the nullity of the foreclosure sale. On the contrary, a notice of auction sale was
complied with as evidenced by the ____________.
WHEREFORE, defendant respectfully prays the complaint be dismissed for lack of
merit, with costs against plaintiff.

Defendant further prays for such other reliefs as may be just and equitable in the
premises.

Tuguegarao City, Cagayan. 26 January 2019.

ATTY. JUAN I. ZALUN


Counsel for the Plaintiff
Law 5, College of Law Building, CSU Andrews Campus
Caritan Highway, Tuguegarao City, Cagayan
ROLL NO: 12489
IBP NO.: 091789034 – 29 March 2017
PTR NO.: 091788990078 – Tuguegarao City, Cagayan
MCLE COMPLIANCE: NEWLY ADMITTED TO THE
BAR
Mobile No.: 09187796578
Email Address: juanifanzalun@gmail.com

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