Republic of the Philippines

First Judicial Region

REGIONAL TRIAL COURT
Branch___
Baguio City

WAYLAN BASUNGIT,
Petitioner,

- versus - Foreclosure Case No. 123-456-789

KARLA THOMAS OLIVER,

Respondent
x-----------------------------------------------x

Position Paper

Respondent, through counsel, and unto this Honorable Court respectfully states:

Background of the case

This is a case involving foreclosure of real estate .mortgage filed by

petitioner Waylan Basungit wherein respondent allegedly failed to pay the last
six installments of his loan.

Statement of Facts

On June 9, 2017, Karla Thomas Oliver contracted a loan with Waylan

Basungit in the amount ONE MILLION FIVE HUNDRED THOUSAND
PESOS (P1,500,00.00), Philippine Currency, with 12% interest to be paid in 12
monthly installments, evidenced by a Loan Agreement with Real Estate
Mortgage and a promissory note, herein attached as ANNEX A and ANNEX
B respectively;

On the same date, Karla, in order to secure the payment of such loan,
executed a Real Estate Mortgage (REM) in favor of Waylan Basungit. The
REM is covered by Transfer Certificate of Title No. 167965, including all
improvements thereon, and more particularly described as follows:

A parcel of land (Lot 1-L, Psd-1-014279, being a

portion of Lot 1, PSU-127975, L.R.C. REC. No. 5952),
situated at Bo. Ambiong, Mun. of La Trinidad, Prov. of
Benguet, Island of Luzon. Bounded on the SW., along lines
6-7-1-2 by Lot 1-U, of the subdivision plan; on the NE.,
along lines 3-4-5 by Lot 1-O, of the subdivision plan, on the
SE., along line 5-6 by Lot 1-M, of the subdivision plan.
Beginning at a point marked 1 of Lot 1-L on plan, being
 S. 48 deg. 35E., 3757.09 m. from Triangulation Sta.
NORTHBASE x x x containing an area of
FIVE HUNDRED AND NINETY THREE (593) SQUARE
METERS.

The aforesaid Real Estate Mortgage was duly registered with the Office
of the Register of Deeds of the Province of Benguet on the 24 th day of May
2016. A copy of TCT No. 167965 is attached as ANNEX C and made an
integral part hereof;

The condition of said mortgage as stated therein is such, that if in case

there is failure to pay any of the monthly installments due from and after
execution of the same, as evidenced by the contracts acceleration clause, the
respondent shall pay or cause to be paid to the petitioner, his heirs or assigns,
the said sum of ONE MILLION FIVE HUNDRED THOUSAND PESOS
(P1,500,000.00), Philippine Currency, together with the stipulated interest of
12% per annum, then the said mortgage shall be discharged otherwise, it shall
remain in full force and effect to be enforceable in the manner prescribed by
law.

Karla faithfully complied to her obligation, in fact, she has paid the
entire amount due to him, to Waylans agent, AMARRA ROBLES, who was
authorized by Waylan to receive payment by virtue of the Special Power of
Attorney (ANNEX A) granted to MS. ROBLES. Respondent has complied
with the Loan Agreement and in actuality, has paid twice the amount of her
monthly dues from July 09, 2016 to December 09, 2016, as evidenced by the
receipts (ANNEX B to G) issued by the petitioners agent;

Respondent also denies having received the demand letters and having
requested any extension for the payment of her dues as she believed in good
faith that petitioners agent had been remitting respondents payments to the
petitioner;

Respondent met with petitioners agent on January 6, 2017 and told the
agent of her plan to file a Petition for the Cancellation of the Real Estate
Mortgage. Respondent also, gave a letter (ANNEX H) to petitioners agent
addressed to the petitioner informing the latter of the same.

Statement of the Issue

Whether or not the petitioner has a cause of action

Whether or not the petitioner is in default

Discussion
 The petitioner in this case has no cause of action to foreclose the
property. Foreclosure is the process by which a property covered may be
subjected to sale to pay demand for which mortgages stand as security (Pacific
Commercial Co. v. Alvarez, 38 OG 758). Foreclosure is the necessary
consequence of non-payment of mortgage indebtedness. The mortgage can be
foreclosed only when the debt remains unpaid at the time it is due (Producers
Bank v. CA, GR No. 111584, 17 Sept. 2001; Govt of the PI v. Espejo, 57 Phil
496) or in case of default in the payment of obligation (PNB v. CA, GR No.
126908, 16 Jan. 2003; Chinabank v. CA, 265 SCRA 327 [1996])

Based on the foregoing discussion, it is clear that the petitioner cannot

foreclose the property. The entire amount due to the respondent including
interest had already been paid to the petitioners agent, AMARRA ROBLES,
who was authorized to receive payment by virtue of the Special Power of
Attorney granted to the latter.

PRAYER

WHEREFORE, Respondent respectfully prays that the complaint be

dismissed for lack of merit, with costs against plaintiff.

Such other reliefs and remedies which may be just and equitable under
the circumstances are likewise prayed for.

Done in the City of Baguio, May 5, 2017.

ATTY. SEGUND A. MANO

Counsel for Plaintiff
rd
Unit 3B, 3 Floor, Random Building
Notexisting Road, Baguio City
(074) 422-4388/ 09777777777
PTR No. 052108; 1-15-19/Baguio City
Roll of Attorney No. 46454; 1-15-10/Baguio City
IBP Lifetime Membership No. 1885423; Baguio-Benguet

Copy Furnished
_________________
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 VERIFICATION AND CERTIFICATION FOR
NON-FORUM SHOPPING

1. I am the Complainant in the above-captioned case;

2. I cause the preparation of the foregoing position paper;

3. I have read the allegations contained therein and hereby certify that they are
true and correct to my knowledge and based on the true records of the case;

4. I hereby certify that I have not filed or caused to be filed any other case or
proceeding involving the same issues or subject matter in the Supreme Court,
the Court of Appeals, or any other Court, tribunal or quasi-judicial agency, and
to the best of my knowledge, no such action or claim is pending therein;

5. Should hereafter I learn that there is a similar pending before any such
Courts, tribunal or agency, I undertake to report such fact tot his agency within
five (5) days from such knowledge;

IN WITNESS WHEREOF, I hereunto affixed my signature on the

same date as above written.

Karla Thomas Oliver

Affiant
SUBSCRIBED AND SWORN to before me in the City of Baguio this 6th of
May, 2017 by KARLA THOMAS OLIVER, who has satisfactorily proven her
identity to me through his through her Community Tax Certificate No. 9101923
issued on January 19, 2017, that she is the same person who personally signed
the foregoing affidavit before me and acknowledged that she executed the same.

Doc No.1 ATTY. JANE ERIKA VITUG

Page No.1 Notary Public
Book. No.1 Until December 31, 2017
Series of 2017 PTR No. 4468924-Baguio
City1/2/17
IBP No. 866289-Baguio City-1/2/17
Roll No. 59999
MCLE Compliance No. 990123-321
2nd floor BBCCC Bldg, Baguio City
Tel. No. 123-321-258