Lamz Comparative

4 TH SET: THE FIRST NATIONAL CITY BANK OF NEW YORK, vs. SILVIO CHENG TAN alias SILVIO CHENG PAN 1. FORECLOSURE OF MORTGAGES; NATURE OF DEFICIENCY JUDGMENT; SETTLEMENT OF ESTATE OF DECEASED; NECESSITY OF FILING CLAIM WITH PROBATE COURT. — A deficiency judgment is a contingent claim and must be filed with the probate court where the settlement of the estate of the deceased mortgagor is pending, within the period of time fixed for the filing of claims. 2. ID.; ID.; ID.; ID.; WHEN JUDGMENT IN CIVIL ACTION REDUCED TO THE CONDITION OF A MERE RIGHT OF ACTION. — While it is true t hat a judgment rendered in a civil action remaining unsatisfied after five (5) years from its date of entry, is reduced to the condition of a mere right of action (Cia. General de Tabacos, etc., vs. Mart inez, et al., 29 Phil., 515), this does not argue against the proposition that it should be filed with the probate court for corresponding action. On the contrary, reduced as it has been to the condition of a mere right of action, it c an well be likened to a promissory note, which should be submitted as a claim to the probate court where the settlement of the estate of the deceased debtor is pending. PNB VS CA AND ALLAN CHUA SYLLABUS 1. REMEDIAL LAW; EXTRAJUDICIAL FORECLOSURE OF MORTGAGE; PRUDENTIAL BANK v. MARTINEZ; NOT APPLICABLE IN CASE AT BAR. — Prudential Bank vs. Martinez, 189 SCRA 612, 615 (1990), is particularly cited by petitioner as precedent for holding that in extrajudicial foreclosure of mortgage, when the proceeds of the sale are insufficient to pay the debt, the mortgagee has the right to recover the deficiency from t he mortgagor. However, it must be pointed out that petitioner's cited cases involves ordinary debts secured by a mortgage. The case at bar, we must stress, involves a foreclosure of mortgage arising out of a settleme nt of estate, wherein the administrator mortgaged a property belonging to the estate of the decedent, pursuant to an authority given by the probate court. As the Court of Appeals correctly stated, the Rules of Court on Special Proceedings comes into play decisively. 2. ID.; SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATE OF DECEASED PERSON; CLAIM AGAINST ESTATE; REMEDIES THAT CAN ALTERNATIVELY BE PURSUED BY THE MORTGAGEE FOR THE SATISFACTION OF HIS CREDIT IN CASE THE MORTGAGOR DIES. — Case law now holds that Section 7, Rule 86 of the Rules o f Court grants to the mortgage e three distinct, independent and mutually exclusive remedies that can be alternatively pursued by t he mortgage creditor for the satisfaction of his credit in case the mortgagor dies, among them: (1) to waive the mortgage and claim the entire debt from the estate of the mortgagor as an ordinary claim; (2) to foreclose the mortgage judicially and prove any deficiency as an ordinary claim; and (3) to r ely on the mortgage exclusively, foreclosing the same at any time before it is barred by prescription without right to file a claim for any deficiency. 3. ID.; ID.; ID.; ID.; ID.; IF THE CREDITOR ADOPTED THE EXTRAJUDICIAL FORECLOSURE, HE WAIVES ANY FURTHER DEFICIENCY CLAIM. — In Perez v. Philippine National Bank, reversing Pasno v. Ravina, we

Lamz Comparative

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