Mortgaged: nonconjugal lot but conjugal house

Hi Atty.,

My mother, my sister, and I received a summons regarding foreclosure of real estate mortgage with damages from my aunt (our dad'd sister). According to the summons,in 2005, our father entered into a real estate mortgage contract with the said aunt. The mortgage was payable in 3 years starting on the day when the contract commenced.The mortgage property referred to in the contract is the lot where our house was built on.

My father died in 2007 and we were unaware of the said contract until this summon. The lot he mortgaged, he bought back when he was still single and prior to his marriage with my mother in May of 1986. But all other improvements, the house, the boardinghouse, etc, were made during their marriage.

Now, my aunt and her heirs want to sell the whole thing (house and lot) so the standing debt would be paid up.

1) Is the mortgage contract binding even if my mother ( and us, the children who were still minors that time) was unaware of it and did not give her consent?

2) May habol pa po ba kami sa ganitong sitwasyon? May magagawa pa po ba kami sa ganito?

So looking forward to your advice.


Sincerely,
Pauline

pauline,

as to number (1), the mortgage may be valid because it appears that your father owned the land absolutely and exclusively at the time it was entered into.

now, as to number (2), yes, you may have a legal recourse to avoid foreclosure. this is because a real estate mortgage presupposes a principal contract of loan. the mortgage is a security arrangement for the loan. from your facts, your dad died before the maturity of the loan. by then, you, the heirs, succeed to your father. it follows that any notice or demand to pay the loan should be have been made to you, the heirs. this means that you should have been made aware of the existence of the loan and demanded to pay the loan.

IF there was no proper demand, there was no default. if there was no default, then foreclosure is premature and improper.

seek the assistance of a lawyer to review your documents and advise you on your legal remedies.

For more free legal information about the matter, you may visit www.domingo-law.com

Thank you so much for the advice Atty. Joyce.

pauline,

glad to be of service!

again, for more free legal information about the matter, you may visit www.domingo-law.com