REPUBLIC OF THE PHILIPPINES

NINTH JUDICIAL REGION

REGIONAL TRIAL COURT, BRANCH 7
ZAMBOANGA CITY

The minors Artemio, Enrique,

and Mariano, all surnamed Perez,
assisted by their father Rolando Perez,
and Juanita Perez,
plaintiffs,
Civil Case No._____
For: Declaration of Nullity
of Foreclosure of
Mortgage

vs.

Martha Ferrrer
and Juan dela Cruz,
defendants.
x----------------------------------------------------------x
COMPLAINT

COMES NOW, the plaintiffs, represented by their

undersigned counsel unto this Honorable Court, most respectfully
states that:
1. Plaintiffs Artemio, Enrique and Mariano, all surnamed Perez,
are minors, assisted by their father Rolando Perez. Plaintiffs are
all Filipinos, single, and residents of Blk. 08, Lot 24, Sea Breeze
Subdivision, Ayala, Zamboanga City, Philippines.

Plaintiff Juanita Perez, is of legal age, Filipino, widowed,

and a resident of Blk. 08, Lot 24, Sea Breeze Subdivision, Ayala,
Zamboanga City, Philippines.
Defendant Martha Ferrer (Martha for brevity) is of
legal age, Filipino, single and a resident of Blk. 08, Lot 24, Sea
Breeze Subdivision, Ayala, Zamboanga City, Philippines. She is
also the mother of herein plaintiffs.
Defendant Juan dela Cruz (Juan for brevity) is of legal age,
Filipino, single, and a resident of Blue Homes Subdvision,
Sinunuc, Zamboanga City, Philippines;
2. Herein plaintiffs are illegitimate children of Rolando Perez and
Martha Ferrer as evidenced by their birth certificates duly issued
by the National Statistics Office, where it appears that plaintiffs
are acknowledge by their father as his children.
Said birth certificates are attached herewith as Annex A1-A3
and made an integral part hereof;
3. Plaintiffs and defendant Martha are the registered owners of a
parcel of land herein described, which they acquired by virtue of a
Deed of Donation executed by Rolando Perez on Jan 15, 2004.
The subject property is located at Blk. 08, Lot 24, Sea Breeze
Subdivision, Ayala, Zamboanga City, Philippines and covered by
Transfer Certificate of Title No. T-092412 (TCT No.092412) duly
issued by the Registry of Deeds Zamboanga City, which land is
more particularly described and quoted from TCT No. 092412 as
follows:
A PARCEL OF LAND (Lot D, of subdivision plan LRC Psd121628, being a portion of the land described on plan H217548, LRC Rec. No. H. Pat) situated at Blk. 08, Lot 24,
Sea Breeze Subdivision, Ayala, Zamboanga City,
Philippines. Bounded on the NE.,
points
5-6
by
Ambrosio Simon; on the NE., points 6-7 by Lots; points 7-8
by Lot B, of the subdivision plan; on the SE.,
points 8-1
by Victorio Respicio; points 1-4 by Macario Andaya; and on
2

the W., points 4-5 by Lot E, of the

subdivision plan.
Beginning at a point marked I on the plan. containing an
area of one thousand five hundred sixty seven
(1,567)
square meters.
The Deed of Donation as well as the Transfer Certificate of
Title (TCT) of said lot are hereby annexed as B and C;
4. Sometime in 2006, Martha left the residential home in order to
work and earn money in Japan. She left her minor children under
the care and custody of their paternal grandmother, plaintiff
Juanita Perez.
An affidavit of Juanita regarding the aforesaid circumstance
is hereby attached as Annex E;
5. The Deed of Donation was amended on December 16, 2007 by
Rolando Perez in order to include his mother, herein plaintiff
Juanita as one of the donees.
The amended deed is hereby attached as Annex F;
6. Martha returned to the Philippines sometime in 2010 and lived
with herein plaintiffs in the subject property;
7. On October 16, 2010, Martha obtained a loan from herein
defendant Juan dela Cruz amounting to one million pesos
(P1,000,000.00) with a monthly interest rate of 2% or 24% per
annum. Said loan is payable in two years.
It must also be stressed that the interest rate of 24 percent
per annum is iniquitous and unconscionable;
8. To secure the fulfilment of the loan, she executed a real estate
mortgage covering their residential house and lot which was
valued at one million pesos (P1,000,000.00). This she did in her
capacity as one of the registered owners as well as the mother of
herein plaintiffs and legal administrator of their property;

9. For failure of Martha to pay the said obligation, defendant Juan

dela Cruz foreclosed the property on November 25, 2012. A public
auction was conducted and herein defendant emerged as the
highest bidder.
10. In December 2013, at the end of the one-year redemption
period, Martha still failed to redeem the mortgaged property.
11. It was only after the lapse of the redemption period, when
herein plaintiffs have received demand letters to vacate the
property that they came to know all about Marthas transactions
with Juan dela Cruz. They were also completely at a loss to
discover that said house and lot were subjected to foreclosure
proceedings and ownership thereof was already under the name of
Juan dela Cruz covered by TCT No. 142401, herein defendant;
12. Hence, Rolando, in behalf of the minor plaintiffs together with
Juana, were constrained to secure the services of a counsel to
protect their interest and file this complaint on their behalf.
CAUSE OF ACTION
11. The foreclosure of the mortgaged property should be declared a
nullity.
12. First it bears stressing that Martha cannot enter into a
contract of mortgage covering the entire property for she is not the
absolute owner thereof, it appearing that she is a mere co-owner of
the above described property, her minor children being registered
owners of the same house and lot as well. Furthermore, the Deed
of Donation was subsequently amended to include Juanita Perez,
the plaintiffs grandmother as one of the donees.
13. Article 2085 par. 2 is explicit that the mortgagor must be the
absolute owner of the thing mortgaged. Likewise, par. 3 of the
same article mandates that the person constituting the mortgage
must have the free disposal of their property, and in the
4

absence thereof, he must be legally authorized for that

purpose.
14. In relation to this is Article 493 of the New Civil Code which
states:
Each co-owner shall have full ownership of his part and of
the fruits and benefits pertaining thereto, and he may therefore
alienate, assign or mortgage it, and even substitute another
person in its enjoyment, except when personal rights are involved.
But the effect of alienation or mortgage, with respect to coowners, shall be limited to the portion which may be
allotted to him in the division upon the termination of coownership.
15. It is in this sense that the mortgage made by Martha covering
the entire property is void. She is the absolute owner of only a
portion of the property, and not its entirety. Being a mere coowner, she is only entitled to a portion thereof which she can
validly alienate for all purposes. The share, however, of her minor
children and that of Juanita should not be included.
16. Second, Martha cannot also validly assert that in the mortgage
of the said property, she is acting as the legal administrator of her
minor childrens property pursuant to Art. 320 of the New Civil
Code which states that:
The father, or in his absence, the mother, is the legal
administrator of the property pertaining to the child under
parental authority. If the property is worth more than two
thousand pesos, the father or mother shall give a bond subject to
the approval of the Court of First Instance.
17. Said provision was further expounded in the case of Lindain
vs. The Hon. Court of Appeals and Sps. Valiente, GR No. 95305, to
wit:

Under the law, a parent, acting merely as the legal (as

distinguished from judicial) administrator of the property of his/
her minor children, does not have the power to dispose of, or
alienate the property of said children without judicial
approval. The powers and duties of the widow as legal
administrator of her minor childrens property as provided in
Rule 84 by the Rules of Court entitled General Powers and Duties
of Executors and Administrators are only powers of possession
and management. Her power to sell, mortgage, encumber, or
otherwise dispose of the property of her minor children
must proceed from the court, as provided in Rule 89 which
requires court authority and approval.
18. In another case entitled Visaya et al vs. Suguitan, GR No. L8300, the Court held:
It is true that under Art. 320 of the new Civil Code, the
mother, was the legal administrator of the property of her minor
children. But as such legal administrator she had no power
to compromise their claims, for compromise has always been
deemed equivalent to alienation.
At present, the Courts approval is indispensable
regardless of the amount involved.
19. The Court also reiterated such ruling in the case of Badillo vs.
Ferrer, where it said:
Surviving widow has no authority or has acted her powers
in conveying to the vendees the undivided share of her minor
children in the property, as her powers as the natural
guardian covers only matters of administration and cannot
include the power of disposition, she should have first secured
court approval before alienation of the property,
20. Similarly, it cannot also be gainsaid that Juan is a mortgagee
in good faith, for it was apparent in the face of the Certificate of
Title that the registered owner of the land was not only Martha,
6

but her three minor children as well. This notwithstanding, he

still entered into a contract of mortgage with Martha without
following the proper Court procedures.
21. Thus, it was held in the case of Inton vs. Quintana, 81 Phil 97,
that:
The private respondents allegation that they are purchasers in
good faith is not credible for they knew from the very beginning
that their vendor, petitioners mother, without court approval
could not validly convey to them the property of her minor
children. Knowing her lack of judicial authority to enter into the
transaction, the private respondents acted in bad faith when they
went ahead and bought the land from her anyway.
22. On the other hand, Juanitas right to this action springs from
the fact that she is also co-owner of the property, being included as
a donee of the property in question in the subsequent amendment
of the Deed. Being a co-owner, her share in the property must also
be protected.
23. In light of the foregoing, it is apparent that the Court held in a
long line of jurisprudence that the mother, as the legal guardian of
her minor children, cannot alienate the latters share in the
property without securing first a court approval. Absence such
approval, the alienation is without any legal effect.
24. Marthas act of mortgaging the entire property, including those
portions accorded to her minor children without the necessary
court approval, should be declared void, insofar as her minor
childrens share is concerned. This is also true with regard the
share of Juanita, whose consent was not properly obtained.
25. The mortgage of herein plaintiffs share being void ab initio,
the foreclosure of the said portion should be declared void as well.
SECOND CAUSE OF ACTION
7

26. The foreclosure proceedings did not conform to the proper

procedures laid down in Act No. 3135, as amended by Act No.
4118.
27. Section 3 of the said Act made mention of 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 city.
28. Defendant Juan dela Cruz did not comply with the
aforementioned procedures- neither did it post in conspicuous
places nor published the auction sale in a newspaper.
29. Martha and Rolando, who were subscribed to daily newspapers
of Zamboanga Times, would have known regarding the foreclosure
proceedings and would have redeemed the same if herein
defendant published it.

PRAYER
WHEREFORE, premises considered, it is respectfully prayed
of this Honorable Court that:
1. Due to the extreme urgency of the matter involved, a 20-day
Temporary Restraining Order be issued upon the filing of this
Complaint to restrain defendants from unlawfully disposing and
possessing the property belonging to herein plaintiffs, and from
unlawfully representing themselves as true and lawful owners of
said property;
2. The 20-day Temporary Restraining Order be converted into a
Preliminary Injunction and after further hearing, to make the
injunction permanent;
8

3. After trial on the merits, the mortgage of the plaintiffs share in

the property as well as its foreclosure be declared null and void;
4. TCT No. 142401in the name of Juan dela Cruz be declared null
and void and cancelled TCT No. 092412 in the name of herein
plaintiffs Artemio, Enrique, and Mariano, all surnamed Perez, be
reinstated.
5. Defendant Juan dela Cruz to pay herein plaintiffs in the
amount of P50,000.00 as moral damages for the mental anguish
and serious anxiety experienced by the plaintiffs, especially by the
minor children;
4. Pay attorneys fees equivalent to 10% of the total amount
adjudged to the petitioner as well as the cost of the litigation.
Plaintiff further prays for such other relief that may be just and
equitable in the premise.
20th day of August 2015, Zamboanga City.

Atty. Rhea Doll Gonzalo

Notary Public
Park Pavilion, Suite 304,
La Purisima St.,
Zamboanga City
Attorneys Roll: 58214
PTR 12345/010119/Zamboanga
IBP 09248/010119/Zamboanga
MCLE 09182/010119/Zamboanga

Republic of the Philippines)

Zamboanga City)s.s
x--------------------------------------x
VERIFICATION AND CERTIFICATION AGAINST FORUM
SHOPPING
We, Artemio, Enrique, and Mariano Perez, represented by
our father Rolando Perez, minors, all single, Filipinos, and
residents of Blk. 08, Lot 24, Sea Breeze Subdivision, Ayala,
Zamboanga City, Philippines; and I, Juanita Perez, of legal age,
Filipino, widowed, and a resident of Blk. 08, Lot 24, Sea Breeze
Subdivision, Ayala, Zamboanga City, Philippines, after having
duly sworn to in accordance with the law, hereby depose and say:
1. That we are the plaintiff in the above entitled complaint;
2. That we have caused the preparation of the said complaint;
3. That we have read the allegations therein contained and that
the same are true and correct based on our personal knowledge
and on authentic records;
4. That we have not therefore commenced any action or filed any
claim involving the same issue in any court, tribunal, or quasijudicial agency, and to the best of our knowledge, no such other
action or claim is pending therein, and if we should thereafter
learn that the same or similar action or claim has been filed or is
pending, we shall report the fact within five days therefrom to the
court where the aforesaid complaint or pleading has been filed.
In witness whereof, the parties hereunto set their hands this
20th day of August 2015 at Zamboanga City, Philippines.
__________

__________

Affiant

Affiant
10

__________

__________

Affiant

Affiant

SUBSCRIBED AND SWORN to before me, a notary public,

this 20th day of August 2015 by minors Artemio, Enrique, and
Mariano Perez, and Juanita Perez who exhibited to me her Voters
ID No. 092412 issued at Zamboanga City on May 24, 2008.
WITNESS MY HAND AND SEAL.

Atty. Rhea Doll B. Gonzalo

Notary Public

Doc No. ____

Page No.____
Book No.____
Series of ____

11

12