(1996, 1997, 1999 Bar Exams) Chattel Mortgage
An accessory contract by virtue of which personal property is recorded in the Chattel Mortgage Register as security for the performance of an obligation. (Art. 2140, NCC)
Subject Matter:
personal or movable property:
1.
Machinery treated as personal property subsequently installed on leased land; (Davao Sawmill v. Castillo, 61 Phil. 709) 2. Interest in business;3. House of strong materials- personal property for purposes of executing a chattel mortgage as the parties to the contract so agrees and no innocent third party will be prejudiced.
4. Shares of stock; (need not be registered in the stocks and transfer book.)
5. House of mixed materials;
6. Vessels recorded in the office of the Philippine Coast Guard to be effective as to third persons; not necessary to be recorded in the Office of the Registry of Deeds;
7. Motor Vehicles mortgage registered in LTO (for vehicles used for public services);
8. House intended to be demolished.
Extent of Chattel Mortgage: 1. After-acquired properties:
General Rule: covers only the property
described therein and not like or substituted property acquired by the mortgagor and placed in the same depository as the property originally mortgaged.
Exception: This provision does not apply to
stores open to public for retail business where the goods are constantly sold and substituted with new stock (Torres v.
Limjap, 56 Phil 141).
Note: A stipulation in the chattel mortgage
which includes goods that are acquired in renewal of or in substitution of goods on hand when the mortgage was executed is valid and binding. (Northern Motors, Inc. v. Coquia, 66 SCRA 415).
2. After-incurred obligations
While a pledge, real estate mortgage, or antichresis may exceptionally secure after-incurred obligations so long as these future debts are accurately described, a chattel mortgage can only
cover obligations existing at the time the mortgage is constituted.
Promise expressed in a chattel mortgage to cover debts yet to be contracted may be binding but security itself arise only after amending the old contract conformably with the form prescribed by the Chattel Mortgage Law. (Acme Shoe Rubber and Plastic Corp.
v. CA, 260 SCRA 714)
A deed of chattel mortgage is void where it provides that the security stated therein is for the payment of any and all obligations hereinbefore contracted and which may hereafter be contracted by the mortgagor in favor of the mortgagee.
Essential requisites:
1. Constituted to secure the fulfillment of a principal obligation;
2. The mortgagor be the absolute owner of the thing mortgaged;
3. The persons constituting the mortgage have the free disposal of the property or in the absence thereof, that they are legally authorized for the purpose;
4. The object be personal or movable property.
Formal requisites: (SARD)
1. Signed by the person executing the same in the presence of 2 witnesses; 2. Accompanied by an affidavit of good
faith and a certificate of oath;
3. Mortgaged property must be described in such a manner as to enable anybody reading the document, after reasonable inquiry and investigation, to be able to identify the same; and
4. Registration.
Affidavit of Good Faith
Included in the contract of chattel mortgage wherein the parties “severally swear that the mortgage is made:
• for the purpose of securing the obligation specified in conditions thereof, and
• for no other purpose and that the same is just and valid obligation and
• one not entered into for the purpose of fraud.”
The affidavit gives the mortgagee a preferred status; it enjoys preference of third person.
Effect of its absence: the contract is
valid between the parties but will not bind third person without notice.
Where registered:
Resident: place of residence
Non-resident: where the property issituated
Where the mortgagor resides in a place different from where the property is situated:in the place where the mortgagor resides and where the property is situated
Exception: Where the amount of themortgage is more than P500,000 registration of the mortgage in the province where the property is situated is sufficient.
Note: where motor vehicles are involved, the
contract must be recorded also in the Land Transportation Office where the vehicle is registered (Sec. 5(e), Revised Motor Vehicles Law);
where the vehicle is a public utility and the mortgage is executed to guaranty a loan not payable within 1 year, the approval of the Land Transportation Franchising and Regulatory Board is required.
Effect of failure to register: the contract is valid
between the parties but will not bind third person without notice.
Remedies of Mortgagee in case of Default by Mortgagor:
1.
Foreclose the mortgage 30 days after the condition is broken;General Rule: public auction
Exception: there is an agreement for private
sale; hence, the mortgagor is in estoppel to question it
Exception to the exception: when there is
fraud or duress
2.
Bring ordinary action to recover money;Note: Remedies are alternative.
Distribution of proceeds of foreclosure sale:
1. payment of the costs of keeping and sale;
2. payment of the obligation secured by such mortgage;
3.
payment of the obligation secured by subsequent mortgages; and4. balance, if any shall be paid to the mortgagor.
Rule on Recovery of Deficiency:
General Rule: There is recovery of deficiency in
all mortgages (chattel and real).
Reason: Mortgages as accessory contracts
serve only as securities and not for the satisfaction of the principal obligation. The action may be brought within 10 years from the time the cause of action accrues.
Exceptions:
1. Chattel mortgage on the thing sold (Art. 1484, 1485 NCC)
2. Pledge (Art. 2115, NCC)
Equity of Redemption
The following may redeem after the condition of the chattel mortgage is broken but before the sale thereof:
1. mortgagor;
2. a person holding a subsequent mortgage;
3. a subsequent attaching creditor.
An attaching creditor who redeems shall be subrogated to the rights of the mortgagee and entitled to foreclose the mortgage.
No right of redemption in chattel mortgage after foreclosure sale (Cabral vs. Evangelista 28 SCRA1000).
Right acquired by 2nd mortgagee and subsequent purchaser:
1. Before payment of debt
After the mortgage is executed, the mortgagor has only an equity of redemption and only this right passes to the 2nd mortgagee in case of a 2nd mortgage.
As between the 1st and the 2nd mortgagee, the latter can only recover the property from the former by paying him the mortgage debt.2. After payment of debt
The judgment or attaching creditor who purchased the property at the execution sale could not acquire anything except such right of redemption.
He is not entitled to the actual possession and delivery of the property without first paying the mortgage debt.
—oOo— RECTO LAW (Arts 1484 and 1485, NCC)
(1996, 1997 Bar Exams) Applicability:
1. Sale of personal property, the price of which is payable on installment; and 2. Contracts purporting to be leases of personal property with option to buy.
Seller’s Remedies in Case of Default: (ECF)
1.
Exact fulfillment of the obligation, shouldthe vendee fail to pay
2.
Cancel the sale, should the vendee’sfailure to pay cover 2 or more installments; and
3.
Foreclose the chattel mortgage on the thing sold, should the vendee’s failure to paycover 2 or more installments. He can not recover any unpaid balance of the price. Any agreement to the contrary shall be void.
Notes: The remedies are alternative, not
cumulative. Foreclosure of chattel mortgage on the things sold shall bar recovery of any deficiency, including recovery from a guarantor. If the seller-mortgagee opts to exercise remedy #1, he shall be deemed to have waived his right as a mortgagee but may still levy on the mortgaged property.
Offenses involving Chattel Mortgage under the Art. 319 of the RPC:
1. Knowingly removing any personal property mortgaged under the Chattel Mortgage Law to any province or city other than the one in which it was located at the time of the execution of the mortgage without the written consent of the mortgagee; and
2. Selling or pledging personal property already mortgages, or any part thereof, under the terms of the Chattel Mortgage Law without the consent of the mortgagee written on the back of the mortgage and duly recorded in the Chattel Mortgage Register. The property removed or repledged, as
the case may be, should be the same or identical property that was mortgaged or pledged before such removal or pledging.
The mortgagor is not relieved of criminal liability even if the mortgage indebtedness is thereafter paid in full, or the mortgagor-seller informed the purchaser that the thing sold had been mortgaged, though the sale is valid.
Distinctions between a Chattel Mortgage and a Pledge
As to: MortgageChattel Pledge Delivery of
the personal property
Not necessary Necessary
Registration of the property Necessary for the validity of the mortgage. Not necessary
Procedure Sec. 14 of Act No. 1508 Art. 2112 of the Civil Code Right of the
debtor to the excess
Has a right to
the excess No right tot eh excess
Deficiency Creditor may recover Creditor cannot recover Consent of the mortgagee/ pledgee Must be in writing and annotated on the back of the mortgage instrument. Need not be in writing and may be oral. Affidavit Mortgagor must execute an affidavit of good faith. Not required
Distinctions between a Chattel Mortgage and a Pacto de Retro Sale
As to: Chattel
Mortgage Retro SalePacto de Nature of the
contract Accessory Principal Title to the
thing Not transferred
Transferred subject to the
right of
redemption
Affidavit of
good faith Required Not required
Distinctions between a Chattel Mortgage and a Real Estate Mortgage
As to: Chattel Mortgage
Real Estate Mortgage Object Personal or movable
property
Real or immovable
Affidavit of
good faith Required Not required Consent of the mortgagee in order to alienate the property Consent must be written No consent needed and any such prohibition is void
Right of
redemption No such right
Right exists in extrajudicial and judicial foreclosure by banks Future
obligations Cannot guarantee Can guarantee
—oOo—
REAL ESTATE MORTGAGE