KOREA EXCHANGE BANK, petitioner, vs. BASIS of TC’s DECISION: Danao vs.

Court of Appeals, 154 SCRA 446,

FILKOR BUSINESS INTEGRATED, INC., KIM EUNG JOE, and LEE citing Manila Trading and Supply Co. vs. Co Kim, et al., 71 Phil. 448
HAN SANG, respondents. “The rule is now settled that a mortgage creditor may elect to waive his
G.R. No. 138292. April 10, 2002 security and bring, instead, an ordinary action to recover the indebtedness
with the right to execute a judgment thereon on all the properties of the
FACTS: Respondent FILKOR had three transactions with the respondent debtor including the subject matter of the mortgage, subject to the
KOREA EXCHANGE BANK: qualification that if he fails in the remedy by him elected, he cannot pursue
further the remedy he has waived.”
1. Borrowed US$ 40,000.00, of which only US$ 40,000.00 was
paid;
ISSUE: (Assigned by petitioner) Whether or not the petitioner had
2. Executed nine (9) trust receipt but failed to turn over the
abandoned the real estate mortgage in its favor, because it filed a simple
proceeds of the goods or the goods themselves; and
collection case. NO
3. Negotiated the proceeds of seventeen (17) letters of credit,
(Resultant Issue) Whether or not petitioner’s complaint before the
which were all dishonored because of discrepancies.
trial court was an action for foreclosure of a real estate mortgage, or an
To secure payment for these obligations respondent FILKOR action for collection of a sum of money.
executed a Real Estate Mortgage. It mortgaged to the bank the
HELD: It was an action for foreclosure of a real estate mortgage.
improvements it constructed on the lot it was leasing in Cavite Export
Petitioner’s allegations in its complaint, and its prayer that the mortgaged
Processing Zone Authority. Respondents Kim Eung Joe and Lee Han Sang
property be foreclosed and sold at public auction, indicate that petitioner’s
on their part executed a Continuing Suretyship binding themselves jointly
action was one for foreclosure of real estate mortgage.
and severally with FILKOR to pay the obligations to the bank.
 In petitioner’s complaint before the trial court, petitioner alleges:
When FILKOR breached all its obligations, petitioner KOREA
EXCHANGE BANK filed a civil case with the RTC of CAVITE. The
To secure payment of the obligations of defendant
petitioner sought to be paid for 27 causes of action and that the mortgaged
Corporation under the First to the Twenty-Seventh Cause of
property be foreclosed and sold at a public auction in case the respondent
Action, on February 9, 1996, defendant Corporation
fails to pay within ninety days from the entry of judgment.
executed a Real Estate Mortgage by virtue of which it
The trial court rendered a judgment in favor of the petitioner for all mortgaged to plaintiff the improvements standing on Block
27 actions but failed to order the foreclosure and public auction of the 13, Lot 1, Cavite Export Processing Zone, Rosario, Cavite,
mortgaged property in the event that FILKOR fails to pay its obligation. belonging to defendant Corporation covered by Tax
Petitioner filed a motion for partial reconsideration seeking that the relief of Declaration No. 5906-1 and consisting of a one-story
foreclosure be granted but such motion was denied saying that the petitioner building called warehouse and spooling area, the
in opting to file a civil action for the collection of the defendant’s obligation, guardhouse, the cutting/sewing area building and the
has abandoned its mortgaged lien on the property subject of the real estate packing area building. (A copy of the Real Estate Mortgage
mortgage. is attached hereto as Annex “SS” and made an integral
part hereof.)
 This allegation satisfies in part the requirements of Section 1, Rule 68 including interest and other charges as approved by the
of the 1997 Rules of Civil Procedure on foreclosure of real estate court, and costs, and shall render judgment for the sum so
mortgage, which provides: found due and order that the same be paid to the court or to
the judgment obligee within a period of not less than ninety
SECTION 1. Complaint in action for foreclosure. – In an (90) days nor more than one hundred twenty (120) days from
action for the foreclosure of a mortgage or other entry of judgment, and that in default of such payment the
encumbrance upon real estate, the complaint shall set property shall be sold at public auction to satisfy the
forth the date and due execution of the mortgage; its judgment.
assignments, if any; the names and residences of the
mortgagor and the mortgagee; a description of the
mortgaged property; a statement of the date of the note or DISPOSITION: WHEREFORE, the petition is GRANTED The
other documentary evidence of the obligation secured by Order dated March 12, 1999, of the Regional Trial Court of Cavite
the mortgage, the amount claimed to be unpaid thereon; City, Branch 88, in Civil Case No. N-6689 is hereby MODIFIED, to
and the names and residences of all persons having or state that the mortgaged property of respondent Filkor be ordered
claiming an interest in the property subordinate in right to foreclosed and sold at public auction in the event said respondent
that of the holder of the mortgage, all of whom shall be fails to pay its obligations to petitioner within ninety (90) days from
made defendants in the action. entry of judgment.

 Prayer of the complaint before the trial court reads as follows:

WHEREFORE, it is respectfully prayed that judgment be

rendered:
x xx
2. Ordering that the property mortgaged be foreclosed and
sold at public auction in case defendants fail to pay
plaintiff within ninety (90) days from entry of judgment.

 Petitioner’s action being one for foreclosure of real estate mortgage the
trial should have ordered the foreclosure and public auction of the
mortgaged property in the event that respondent Filkor fails to pay its
outstanding obligations. This is pursuant to Section 2 of Rule 68 of the
1997 Rules of Civil Procedure, which provides:

SEC. 2. Judgment on foreclosure for payment or sale.- If

upon the trial in such action the court shall find the facts set
forth in the complaint to be true, it shall ascertain the amount
due to the plaintiff upon the mortgage debt or obligation,