On November 29, 1988 and February 20, 1989, respondent sent petitioner demand letters to settle his overdue account of P4,600,000.00, exclusive of interest and penalties, rendering the obligation due and demandable; otherwise, respondent would extrajudicially foreclose the real estate mortgage.
In a letter dated February 20, 1989, respondent’s Senior Vice-President informed petitioner that his partial payments of P200,000.00 and P654,465.75 made on October 6, 1988 and October 28, 1988, respectively, were applied to the interest on the loan.
On May 25, 1989, petitioner tendered another payment in the amount of P2,000,000.00, together with a letter stating that the amount was to update payment of petitioner’s restructured account, and the excess amount to be applied to the principal balance, under Official Receipt No. 59845. Another payment was made on June 1, 1989 for P1,000,000.00 under Official Receipt No. 60084.
On June 6, 1989, respondent formally notified petitioner that since the latter refused to submit to the former the request for postponement of the auction sale of the property, scheduled on June 7, 1989, respondent would proceed with the auction sale. the following day, respondent caused the extrajudicial foreclosure and auction sale of the mortgaged properties. The Clerk od Court and the Ex Officio Sheriff of pasig sold the properties to respondent as the highest bidder. On November 3, 1989, petitioner filed an action for annulment of extrajudicial foreclosure sale against respondent for the alleged illegal foreclosure of mortgage over the parcels of land and the subsequent sale of the properties.
Respondent stated that [petitioner had no valid cause of action against it, since petitioner failed to pay his obligation in accordance with the terms of the promissory note, which rendered the entire principal of the promissory note due and demandable. Instead of paying the same, petitioner formally requested respondent to restructure the subject loan. Respondent required petitioner to pay all past due interests and quarterly installments before loan restructuring could be discussed. However, respondent accepted the check payment of P2,000,000.00, which was applied to petitioner’s loan interest up to January 14, 1988. Respondent stated that in the letter dated February 20, 1989, it formally informed petitioner that it never agreed to the restructuring of the loan for P4,600,000.00. Respondent also claimed that in its last letter dated February 28, 1989, it reiterated its position that the promissory note was due and demandable, and extrajudicial foreclosure would push through if full payment was not made within seven days. Respondent asserted that the foreclosure proceedings were conducted in accordance with the requirements of Act 3115, as amended.
On May 30, 1990, petitioner tendered payment in the amount of P2,756,487.77 as redemption price of the foreclosed property.[11] Respondent protested the tender of payment, maintaining that Section 78 of the General Banking Act applied in this case, not Section 30, Rule 39 of the Rules of Court; hence, the redemption price due as of May 30, 1990 should be P2,993,219.41, resulting in a deficient payment by petitioner in the sum of P236,731.64.
On September 29, 1993, the trial court rendered a Decision in favor of petitioner. It held that respondent acted in bad faith and deceit in foreclosing the subject properties after the offer for restructuring by petitioner, together with substantial payments made.
Respondent appealed the trial court’s decision to the Court of Appeals. The Court of Appeals found respondent’s appeal to be partly meritorious. It disagreed with the trial court’s finding that the foreclosure sale was null and void, because the trial court’s conclusion that the foreclosure was premature and attended by bad faith was not supported by the facts of the case and the law on the matter. The Court of Appeals agreed with respondent that the redemption price should be P2,993,219.41, which was petitioner’s outstanding balance as of May 30, 1990 after deducting his total payments amounting to P3,854,465.75. It also agreed with respondent that the applicable law was Section 78 of Republic Act No. 337, otherwise known as the General Banking Act, and not Rule 39 of the Rules of Court.
On April 20, 2001, petitioner, through his counsel of record, Atty. Salvador B. Britanico, filed a Motion for Reconsideration. On November 5, 2001, the Court of Appeals issued a Resolution,[21]which denied the motion for reconsideration for lack of merit. The Resolution became final and executory and an Entry of Judgment was issued on November 30, 2001.
On July 10, 2002, almost eight months after the Entry of Judgment, Atty. Bonifacio A. Alentajan entered his appearance as counsel for petitioner. However, the records of the case did not show that petitioner’s counsel of record, Atty. Britanico of the S.B. Britanico Lisaca Lisaca Apelado Law Offices, had withdrawn from the case.
On March 19, 2003, petitioner, through Atty. Bonifacio A. Alentajan, filed a Motion to Set Aside Entry of Judgment and to Resolve Appellant’s Motion for Reconsideration, alleging that the motion for reconsideration had yet to be resolved. In a Resolution dated September 10, 2004, the Court of Appeals denied the motion for lack of merit. Petitioner filed this petition.
Issues:
1. Whether or not the Motion for Reconsideration had already been resolved.
2. Whether or not the entry of judgment issued by the CA is premature, considering that petitioner’s Motion for Reconsideration has not yet been resolved despite announcement of the CA that it had already resolved said Motion.
Held: The petition lacks merit.
1. The Court of Appeals resolved petitioner’s motion for reconsideration in its Resolution dated November 5, 2001. The Resolution was properly served on petitioner’s counsel of record on November 14, 2001. Notice sent to counsel of record is binding upon the client, and the neglect or failure of counsel to inform him of an adverse judgment resulting in the loss of his right to appeal is not a ground for setting aside a judgment valid and regular on its face. Fifteen days from receipt of the Resolution dated November 5, 2001, the Decision became final and executory absent any appeal by petitioner. Hence, the Entry of Judgment issued on November 30, 2001 was in order.
2. Based on the records of the case, the Resolution dated November 5, 2001, denying petitioner’s motion for reconsideration of the Decision dated March 23, 2001, was received by petitioner’s counsel on November 14, 2001. Petitioner failed to appeal the Court of Appeals’ Decision to this Court.
The failure to file an appeal from the decision rendering it final and executory is not a denial of due process. The right to appeal is not a natural right or a part of due process; it is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of the law.
Further, the proper remedy for allegations of mistake or inexcusable negligence of counsel, which prevented a party from taking an appeal, is a petition for relief under Rule 38 of the Rules of Court. The petition must be filed within 60 days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered. It must be filed within the reglementary period, which is reckoned from the time the party’s counsel receives notice of the decision for notice to counsel of the decision is notice to the party.
Since the Decision of the Court of Appeals became final and executory and Entry of Judgment was issued on November 30, 2001, the Decision can no longer be reviewed by this Court.
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