On 9 May 2006, Sheriff Villegas levied on the real properties of
petitioner, particularly on those covered by Condominium Certificate of Title
No. N-14163, No. N-14183 and No. N-14286, etc. and Transfer Certificate Title
No. N-164112 and No. N-164113. The levy effected by Sheriff Villegas was on
sixteen (16) condominium units of Lansbergh Place and on the two parcels of
land upon which Torre Venezia, a 27-storey building with 302 condominium units,
presently stands.
As reported by Sheriff Villegas, he exerted diligent efforts to serve
the writ upon the officers of petitioner, but said officers refused to
acknowledge receipt of said writ, causing him to serve the writ and the letter
of request for compliance to petitioner's counsel who acknowledged receipt thereof.
Sheriff Villegas also served notices of garnishment on 5 May 2006 to the
following banks: Banco de Oro Universal Bank, Philippine National Bank,
Metropolitan Bank and Trust Company, United Coconut Planters Bank, and East
West Banking Corporation. The bank replied after 9 May 2006.
1. Was the execution
sale valid?
No.
Since there was no
proper levy in the case at bar, the consequent execution sale is thus declared
invalid.
A sale unless
preceded by a valid levy, is void, and the purchaser acquires no title.
2. What is the effect
of improper levy?
It is doctrinal
that "a lawful levy of execution is a prerequisite to an execution sale,
either of real estate or of personalty, to the conveyance executed in pursuant
thereof, and to the title acquired thereby." A proper levy is
indispensable to a valid execution sale, and an execution sale, unless preceded
by a proper levy, is void and the purchaser in said sale acquires no title to
the property sold thereunder.
3. Will a presumption
of regularity applicable in this case?
The Court, however,
holds that such presumption cannot be applied in the case at bar given the
abstracted and vague declarations in the Sheriff’s Report/Return. The ambiguity
in the sheriffs statements as to the alleged attempted service on petitioner
disputes the presumption that said sheriff performed his official duty in a
regular manner.
4. Was service to
counsel, in this case, a valid demand as required under Section 9, Rule 39 of
the Revised Rules of Court?
No.
It is to be noted
that the service of the writ of execution was made on petitioner's counsel on 9
May 2006 or on the very day when levy was made on the real properties of
petitioner. The lateness of the service of the writ of execution on
petitioner's counsel or the prematurity of the levy precluded petitioner from
having a real opportunity to effect the immediate payment of the judgment debt
and the lawful fees.
5. What constitutes
valid demand under Section 9, Rule 39 of the Revised Rules of Court?
In requiring a valid
demand, Section 9, Rule 39 of the Revised Rules of Court contemplates a
situation where the judgment obligor is first given the chance to effect
immediate payment of the judgment debt and the lawful fees through cash or
certified bank checks. If this is not feasible, it is only then that a levy is
effected, giving the judgment obligor the choice as to which property to levy
upon, or if the judgment obligor does not exercise his choice, to effect the
levy first on personal properties, and then on real properties.
6. What is the proper
order of a valid levy?
A valid levy must
first be effected on personal properties, if any, and then on real properties
if personal properties are insufficient to answer for the judgment.
The Rules provide
the order by which the property of the judgment debtor may be executed upon for
the satisfaction of a money judgment:
(b) Satisfaction by
levy. - If the judgment obligor cannot pay all or part of the obligation in
cash, certified bank checks or other mode of payment acceptable to the judgment
obligee, the officer shall levy upon the properties of the judgment obligor of
every kind and nature whatsoever which may be disposed of for value and not
otherwise exempt from execution giving the latter the option to immediately choose
which property or part thereof may be levied upon, sufficient to satisfy the
judgment. If the judgment obligor does not exercise the option, the officer
shall first levy on the personal properties, if any, and then on the real
properties if the personal properties are insufficient to answer for the
judgment.
The sheriff shall
sell only a sufficient portion of the personal or real property of the judgment
obligor which has been levied upon.
When there is more
property of the judgment obligor than is sufficient to satisfy the judgment and
lawful fees, he must sell only so much of the personal or real property as is
sufficient to satisfy the judgment and lawful fees.
Real property,
stocks, shares, debts, credits, and other personal property or any interest in
either real or personal property, may be levied upon in like manner and with
like effect as under a writ of attachment.
7. Was the levy
effected on the real properties of petitioner proper?
No.
A valid demand for
the immediate payment of the full amount stated in the writ of execution and
all lawful fees is necessary to a proper levy.
Section 9, Rule 39
of the Revised Rules of Court provides that in the execution of money
judgments, "(t)he officer shall enforce an execution of a judgment for money
by demanding from the judgment obligor the immediate payment of the full amount
stated in the writ of execution and all lawful fees."
Noticeably, the
Sheriff’s Report/Return failed to specifically indicate material information on
the alleged attempted service on petitioner. It failed to state the name of the
officer who allegedly refused to receive the writ and the circumstances
surrounding such refusal, and even the date when said attempted service was
allegedly made.
And yet, the levy
on petitioner's real properties was made on 9 May 2006, the date after bank
replied whether there were garnishable funds, clearly showing that petitioner
was deprived of the opportunity to have his personal properties garnished or
levied upon first before his real properties.
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