Section 1. When a sale is made under a special power inserted in or attached to any real-estate mortgage hereafter made as security for the payment of money or the fulfillment of any other obligation, the provisions of the following sections shall govern as to the manner in which the sale and redemption shall be effected, whether or not provision for the same is made in the power.
Sec. 2. Said sale cannot be made legally outside of the province in which the property sold is situated; and in case the place within said province in which the sale is to be made is the subject of stipulation, such sale shall be made in said place or in the municipal building of the municipality in which the property or part thereof is situated.5
Section 1, Rule 2 [of the Rules of Court] defines an action in this wise:"Action means an ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, or the prevention or redress of a wrong."
Hagans v. Wislizenus does not depart from this definition when it states that "[A]n action is a formal demand of one's legal rights in a court of justice in the manner prescribed by the court or by the law. x x x." It is clear that the determinative or operative fact which converts a claim into an "action or suit" is the filing of the same with a "court of justice." Filed elsewhere, as with some other body or office not a court of justice, the claim may not be categorized under either term. Unlike an action, an extrajudicial foreclosure of real estate mortgage is initiated by filing a petition not with any court of justice but with the office of the sheriff of the province where the sale is to be made. By no stretch of the imagination can the office of the sheriff come under the category of a court of justice. And as aptly observed by the complainant, if ever the executive judge comes into the picture, it is only because he exercises administrative supervision over the sheriff. But this administrative supervision, however, does not change the fact that extrajudicial foreclosures are not judicial proceedings, actions or suits.9
In line with the responsibility of an Executive Judge under Administrative Order No. 6, date[d] June 30, 1975, for the management of courts within his administrative area, included in which is the task of supervising directly the work of the Clerk of Court, who is also the Ex-Office Sheriff, and his staff, and the issuance of commissions to notaries public and enforcement of their duties under the law, the following procedures are hereby prescribed in extra-judicial foreclosure of mortgages:1. All applications for extrajudicial foreclosure of mortgage whether under the direction of the sheriff or a notary public, pursuant to Act 3135, as amended by Act 4118, and Act 1508, as amended, shall be filed with the Executive Judge, through the Clerk of Court who is also the Ex-Officio Sheriff.
Endnotes:
* Additional member in lieu of Associate Justice Jose Catral Mendoza per Special Order No. 975 dated March 21, 2011.
1 Rollo, pp. 406-422.
2 Id. at 404-405.
3 Id. at 10-32.
4 Dated February 16, 2010; id. at 39-53.
5 Italics supplied.
6 Paragraph 16 of the parties' Mortgage, which states:
16. The MORTGAGOR(S) and MORTGAGEE hereby agree that the necessary action for the foreclosure of this mortgage may be instituted by the MORTGAGEE at its option, in the Regional Trial Court in Makati, the MORTGAGOR(S) hereby waiving all right which he (it/they) may have to require that such action be instituted by the MORTGAGEE in the Regional Trial Court of the Province where the mortgaged properties are situated. The same exclusive venue (RTC Makati) shall apply for any and all other actions arising from, related with, or otherwise connected with this mortgage, whether filed by any one or all of the MORTGAGOR(S)/DEBTOR(S).
7 Sec. 4. When Rule not applicable. - This Rule shall not apply -
(a) In those cases where a specific rule or law provides otherwise; or
(b) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof.
8 334 Phil. 671 (1997).
9 Id. at 677-678. (Citations omitted.)