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REAL MORTGAGE

Read also Arts. 2085 2092

Mortgage; defined
Is a contract whereby the debtor secures to the creditor the fulfillment of a principal obligation, specially subjecting to
security immovable property or real rights over immovable property which obligation shall be satisfied with the proceeds
of the sale of said property or rights in case the said obligation is not complied with at the time stipulated.

Essential Requisites of Mortgage (Art. 2085)


1. That they be constituted to secure the fulfillment of a principal obligation.
2. That the mortgagor be the absolute owner of the thing mortgaged.
3. That the persons constituting the mortgage have the free disposal of their property, and in the absence thereof, that
they be legally authorized for the purpose.
In addition, the document in which it appears be recorded in the Registry of Property. If not recorded, the mortgage
is nevertheless finding between the parties.

Art. 2124

Object of a contract of mortgage


1. Immovables (Art. 415)
2. Alienable real rights in accordance with the laws, imposed upon immovables.

Kinds of Mortgage
A mortgage may be;

1. Voluntary one which is agreed to between the parties or constituted by the will of the owner of the property on
which it is created.
2. Legal one required by law to be executed in favor of certain persons.
3. Equitable one which, although it lacks the proper formalities of a mortgage, shows the intention of the parties to
make the property as a security for a debt.
The provisions in the Civil code governing equitable mortgages are found in Arts. 1365, 1450, 1454, 1602, 1603,
1604, and 1607.

Art. 2125. See Article in relation to Art. 2085

Effect of invalidity of mortgage on principal obligation


Where a mortgage is not valid, e.g., it is executed by one who is not the owner of the property (Art. 2085(2)), or the
consideration of the contract is simulated (Arts. 1345, 1352), or false (Art. 1353), the principal obligation which it
guarantees is not rendered rule and void.
What is lost is the right to foreclose the mortgage as a special remedy for satisfying or settling the indebtedness which
is the principal obligation.

Art. 2126. See Article

Art. 2127

Extent of Mortgage
A real estate mortgage constituted on immovable property is not limited to the property itself but also extends to all its
accessions, improvements, growing fruits and rents or income (Art. 2102) as well as to the proceeds of insurance
should the property be destroyed, or the expropriation value of the property should it be expropriated.

Art. 2128. See Article

Art. 2129. See Article

Right of creditor against transferee of mortgaged property.


The fact that the mortgagor has transferred the mortgaged property to a third person does not relieve him from his
obligation to pay the debt to the mortgage creditor in the absence of novation.

Art. 2130. A stipulation forbidding the owner from alienating the immovable mortgaged shall be void.

Art. 2131. See Article

Foreclosure; defined
Is the remedy avoidable to the mortgagee by which he subject the mortgaged property to the satisfaction of the
obligation to secure which the mortgage was given.

Kinds of foreclosure
1. Judicial Foreclosure (Rule 68, Rules of Court)
a. Judicial action for the purpose
A mortgaged may be foreclosed judicially by bringing an action for that purpose, in the proper court which
has jurisdiction over the area wherein the real property involved or a portion thereof, is situated.

b. Order to mortgagor to pay mortgage debt.


If the court finds the complaint to be well-founded, it shall order the mortgagor to pay the amount due upon
the mortgage debt or obligation with interest and other charges within a period of not less than 90 days nor
more than 120 days from the entry of judgment.

c. Sale to highest bidder at public auction.


If the mortgagor fails to pay at the time directed in the order, the court, upon motion, shall order the property to be sold
to the highest bidder at public auction.
d. Confirmation of sale
The sale when confirmed by an order of the court, also upon motion, shall operate to divest the rights of all
parties to the action and to vest their rights in the purchaser subject to such right of redemption as may be
allowed by law.

e. Execution of judgment
No judgment rendered in an action for foreclosure of mortgage can be executed otherwise than in the
manner prescribed by the law on mortgages, because parties to an action are not authorized to change the
procedure which it prescribed.

f. Application of proceeds of sale


The proceeds of the sale be applied to the payment of the;

1. cost of the sale

2. the amount due the mortgagee

3. claims of junior encumbrances or persons holding subsequent mortgages in the


order of their priority, and

4. the balance, if any, shall be paid to the mortgagor or his duly

authorized agent, or to the person entitled to it.

g. Execution of Sheriffs certificate


The foreclosure is not complete until the sheriffs certificate is executed, acknowledged and recorded.

2. Extra judicial foreclosure (act. No. 3135)


a. Express authority to sell given to mortgage.
b. Authority not extinguished by death of mortgagor or mortgagee.
A mortgage may be foreclosed extrajudicially where there is inserted in the contract a clause giving the mortgagee the
power, upon default of the debtor, to foreclose the mortgage by an extrajudicial sale of the mortgaged property.
c. Public sale after proper notice
The sale, which cannot be made legally outside of the province in which the property is situated shall be made at public
auction after the giving of proper notice which consists in the posting of the notice of the sale in at least three (3) public
places at the municipality or city where the property is situated and the publication thereof in a newspaper of general
circulation in said municipality or city.
d. Payment of cash by highest bidder
Where the highest bidder is the mortgagee and the amount of his bid represented the total mortgage debt,
it is not necessary for him to pay cash. It would serve no purpose for the sheriff to go through the ceremony
of receiving the money and paying it back to the creditor.
e. Nature of surplus proceeds from foreclosure sale
Surplus money arising from a sale of real property like land under foreclosure stands in the same place of
the land itself with respect to liens thereon or vested right therein.

f. Redemption of property sold


The debtor has the right to redeem the property sold within the term of one year from and after the date of the sale. The
reckoning date in cases of registered land is from the registration of the certificate of sale since it is only from the date
that the sale takes effect as a conveyance. In case of juridical persons, they have the right to redeem the property until,
but not after the registration of the certificate of foreclosure sale which in no case shall be more than three (3) months
after foreclosure, which ever is earlier.
g. Remedy of party aggrieved by foreclosure
The debtor may, the proceedings in which possession was requested, petition that the sale be set aside and the writ of
possession cancelled, because the mortgage was not violated or the sale was not made in accordance with the
provisions thereof.

Right of mortgage to recover deficiency


1. Mortgage merely security, not a satisfaction of an obligation
If there be a balance due to the mortgagee after applying the proceeds of the sale, the mortgagee is
entitled to recover the deficiency. (Development Bank of the Phils. Vs. Mirang, 55SCRA 141).

In judicial foreclosure, the Rules of Court specifically gives the mortgagee the right to claim for deficiency in
case deficiency exists, while Act. No. 3135 governing extrajudicial foreclosures of mortgage does not give a
mortgagee the right to recover deficiency after the public auction sale, neither does it expressly or implied by
prohibit such recovery.

2. Action for recovery of deficiency


If the deficiency is embodied in a judgment, it is referred to as deficiency judgment. It is the settled rule that a
mortgagee may recover any deficiency in the mortgage account which is not realized in a foreclosure sale and that
the action for the recovery of deficiency may be filed even during the period of redemption.

3. Prescriptive period of action


The action to recover a deficiency after foreclosure prescribes after ten (10) years from the time the right of action
accrues as provided in Art. 1144 (2) of the Civil Code)

Effect of inadequacy of price in foreclosure sale


1. General Rule; exception
Where there is a right to redeem, inadequacy of price is not material because the judgment debtor may
reacquire the property or else sell his right to redeem and thus recover any loss he claims to have suffered by
reason of the price obtained at the auction sale.

Mere inadequacy of the price obtained at the sheriffs sale will not be sufficient to set aside the sale unless
the price is so inadequate as to shock the conscience of the court taking into consideration the peculiar
circumstances attendant thereto.
Options in case of death of debtor
The rule is that a secured creditor holding a real estate mortgage has three (3) district, independent, and mutually
exclusive remedies in case of death of the debtor.

They are;

1. to waive the mortgage and claim the entire death from the estate of the mortgage as an ordinary claim.
2. to foreclose the mortgage judicially and prove any deficiency as an ordinary claim, and
3. to rely on the mortgage exclusively, foreclosing the same at any time before it is barred by prescription without right
to file a claim for any deficiency.

Redemption; defined
Is a transaction by which the mortgagor requires or busy back the property which may have passed under the
mortgage or divests the property of the lien which the mortgage may have created.
It is allowed in case of foreclosure in favor of banking and credit institutions and in extrajudicial foreclosures.

Kinds of Redemption:
1. Equity of Redemption
The right of the mortgagor in case of judicial foreclosure to redeem the mortgaged after his default in the
performance of the conditions of the mortgage but before the confirmation of the sale of the mortgaged property.

2. Right of Redemption
The right of the mortgagor in case of extrajudicial foreclosure to redeem the mortgaged property within a certain
period after it was sold for the satisfaction of the mortgage debt.

Period within which to exercise right


In all cases of extrajudicial sale, the mortgagor may redeem the property at any time within the term of one year from
and after the date of registration of the certificate of sale with the appropriate Registry of Deeds.

Effect of failure to exercise right


If no redemption is made within the prescribed period, the purchaser has the absolute right to a writ of possession which
is the final process to carry out or consummate the extrajudicial foreclosure. Henceforth, the mortgagor loses his right
over the property.

Effect of exercise of right


What actually is effected is not the recovery of the property which ownership is never lost, but the elimination from his
title thereto of the lien created by the levy or attachment or judgment or registration of the mortgage thereon. The
redemption defeats the inchoate right of the purchase and restores the property to the same condition as if no sale had
been made.
Where mortgaged property sold to a third party.
A sale by the mortgagor to a third party of the mortgaged property during the period for redemption transfers only the
right to redeem the property and the right to passes, use and enjoy the same during said period. Under Rule 39, Sec.
31 of the Rules of Court, the judgment debtor remains in possession of the property foreclosed and sold, during the
period of redemption, but he cannot make a conveyance of the ownership of the property as said ownership belongs to
the purchaser at the foreclosure sale. (Dizon vs. Gabarro, 83SCRA 688 [1978])

Where sale not registered and made without consent of mortgagee.


The buyer was not validly substituted as debtor, and hence, had no right to redeem (Bonnevie vs. CA., 125 SCRA 122
[1983])

Where extrajudicial foreclosure effected with fraud


An extrajudicial foreclosure effected with fraud is null and void

Nature of mortgagors right of redemption


1. An absolute privilege
This right of redemption is an absolute privilege, the exercise of which it entirely dependent upon the will and
discretion of the redemptioner.

2. A mere statutory privilege


It must be exercised in the made and within the period prescribed by the statute.

3. Involves title to foreclose property


An action to redeem by the mortgage debtor affects his title to the foreclosed property. If the action is seasonably
made, it seeks to erase from the title of the judgment or mortgage debtor the lien created by registration of the
mortgage and sale.

Requisites for valid redemption


1. Redemption must be made within one (1) year from the date of the registration of the certificate of sale.
2. Payment of the purchase price of the property plus 1% interest per month together with the taxes thereon, if any,
paid by the purchaser and the amount of his prior her, if any, with the same rate of interest computed from the date
of registration of the sale, up to the time of redemption, and
3. written notice of the redemption must be served on the officer who made the sale and a duplicate filed with the
proper Register of Deeds.

Payment of redemption money


The payment of he redemption money may be made to the purchaser or redemption, or for him to the officer who made
the sale. (Sec. 39, Rules of Court). It may be made to the sheriff. (Reyes vs. De los Santos, 50 SCRA 431).

Amount payable
In the redemption of mortgaged property, the rule is that the amount payable is no longer the judgment debt but the
purchase price at the auction sale. Similarly, attorneys fees awarded by the trial court shall not be added to the
redemption price because the amount payable is no longer the judgment but that which is stated in Sec. 30, Rule 39,
Rules of Court.

Persons entitled to exercise right of redemption


1. Mortgagor or one in privity of title with mortgagor
2. successor in interest

Equity of Redemption in judicial foreclosure


1. Period for exercise
In a judicial foreclosure of mortgages under Rule 68 of the Rules of Court, there is no right of redemption after the
judicial sale is confirmed. There is only the equity of redemption in favor of the mortgagor consisting in the right to
redeem the mortgaged property within the 90-day period from the order of foreclosure, or even thereafter but before
confirmation of the sale.

2. Reckoning of the 90-day period


The 90-day period granted the mortgage debtor within which to pay the amount of the mortgage in Sec. 2, Rule 68
of the Rules of Court, is counted from the date of the service of such order. The order referred to in the Rule is the
order requiring the debtor to pay the judgment within 90 days.

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ANTICHRESIS

Art. 2132
Antichresis; defined
Is a contract whereby the creditor acquires the right to receive the fruits of an immovable of his debtor, with the
obligation to apply them to the payment of the interest, if owing, and thereafter to the principal of his credit.

Antichresis and pledge compared


1. Antichresis refers to real property, while pledge, to personal property.
2. antichresis is perfected by mere consent, while pledge is perfected by the delivery of the thing pledged, and
3. Antichresis is a consensual contract, while pledge is a real contract.

Antichresis and real mortgage compared


1. In antichresis, the property is delivered to the creditor, while in mortgage, the debtor usually retains possession of
the property.
2. In antichresis, the creditor acquires only the right of receive the fruits of the property; hence, it does not produce a
real right, while in mortgage, the creditor does not have any right to receive the fruits, but mortgage creates a real
right over the property which is enforceable against the whole world.
3. In antichresis the creditor unless there is stipulation to the contrary, is obliged to pay the taxes and charges upon
the estate (Art. 2135), while in mortgage, there is no such obligation on the part of the mortgagee.

Art. 2133

Measure of application of fruits to interest and principal.


The fruits of the immovable which is the object of the antichresis must be appraised at their actual market value at the
time of the application (see Art. 2138).

Art. 2134. See Article

Art. 2135

Obligation of the antichretic creditors


1. Payment of taxes and charges upon the estate (Art. 2135)
2. Application of the fruits of the estate (Art. 2132)
3. Bear the expenses necessary for its preservation and repair

Art. 2136

Exemption from the obligation imposed by the preceding Article.


The creditor, in order to exempt himself from the obligations imposed upon him by the preceding article, may always
compel the debtor to enter again upon the enjoyment of the property, except when there is stipulation to the contrary.

Article. 2137. See Article

Remedy of creditor in case of non-payment of debt.


1. Bring an action for specific performance, or
2. petition for the sale of the real property as in a foreclosure of mortgages under Rule 68 of the Rules of Court.
The parties, however, may agree on an extrajudicial foreclosure in the same manner as they are allowed in
contracts of mortgage and pledge (see Art. 1307).
Art. 2138. See Article

Art. 2139. See Articles

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CHATTEL MORTGAGE

Art. 2140

Chattel mortgage; defined


Is that contract by virtue of which personal property is recorded in the Chattel Mortgage Register as a security for the
performance of an obligation.

Chattel mortgage and pledge; distinguished


1. In chattel mortgage, the delivery of the personal property to the mortgage is not necessary, while in pledge, such
delivery is necessary.
2. In chattel mortgage, the registration of the same in the Chattel Mortgage Registry is not necessary.
3. In chattel mortgage, if the property is foreclosed, the excess over the amount due goes to the debtor, while in
pledge, if the property is sold, the debtor is not entitled to the excess unless it is otherwise agreed.
4. In chattel mortgage, if the property is foreclosed and there is a deficiency, the creditor is entitled to recover the
deficiency from the debtor, except if the chattel mortgage is a security for the purchase of personal property in
installments. In pledge, if the property is sold, and there is a deficiency, the creditor is not entitled to recover the
deficiency not withstanding any stipulation to the contrary (Art. 2115).

Art. 2141. See Article

Offenses involving chattel mortgage


Under the Revised Penal Code, the following acts are punishable.
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 execution of the mortgage without the written consent of the
mortgagee.
2. Selling or pledging personal property already mortgaged, or any part thereof, under the terms of the Chattel
Mortgage Law without the consent of the mortgage written on the back of the mortgage and duly recorded in the
Chattel Mortgage Register.
An essential element common to the two acts punished under Art. 319 of the RPC is that 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.

Subject matter of Chattel Mortgage


1. Shares of stock in a corporation (Chua Geran vs Samahan 62 Phil. 472)
2. An interest in business
3. Machinery treated by the parties as personal property.
4. Vessels
5. Motor
6. House of mixed materials
7. House intended to be demolished
8. House built on rented land

Period within which registration should be made


The law is substantially and sufficiently complied with where the registration is made by the mortgage before the
mortgagor has complied with his principal obligation and no right of third persons is prejudiced.
Effect of registration
The registration of the chattel mortgage is an effective and finding notice to other creditors of its existence and creates a
real right or a lien which, being recorded, follows the chattel whenever it goes. The registration gives the mortgages
symbolical possession.

Registration adds nothing to the instrument, considered as a source of title and affects nobodys rights except as a
species of notice.

Duty of Register of Deeds


Ministerial

Affidavit of good faith required


The affidavit of good faith is an oath in a contract of chattel mortgage wherein the parties severally swear that the
mortgage is made for the purpose of securing the obligation specified in the conditions thereof and for no other
purposes and that the same is a just and valid obligation and one not entered into for the purposed of fraud.

Effect of absence of the affidavit of good faith


The absence of the affidavit vitiates a mortgage only as against third persons without notice like creditors and
subsequent encumbrances.

The affidavit is required only for the purpose of transforming and already valid mortgage into preferred mortgage.
Thus, it is not necessary for the validity of the Chattel Mortgage itself but only to give it a preferred status.

Period to foreclose mortgage


1. Chattel Mortgage
The mortgage may, after 30 days from the time of the condition broken, cause the mortgaged property to
be sold at public auction by a public officer.

The 30 day period to foreclose a chattel mortgage is the minimum period after violation of the mortgage
condition for the mortgage creditor to cause the sale at public auction of the mortgaged chattel with at least ten (10)
days notice to the mortgagor and posting of public notice of time, place, and purpose of suck sale, and is a period of
grace for the mortgagor, to discharge the mortgage obligation.

2. Real Estate Mortgage


In case of judicial foreclosure, the grace period for the mortgagor to pay the amount due is not less than 90 days
nor more than 120 days from the entry of judgment on foreclosure. In default of suck payment the property shall be
sold at public auction to satisfy the judgment.

Application of proceeds of sale


The proceeds of the sale are to be applied to the payment of the following.

1. Cost and expenses of keeping and sale


2. Payment of the obligation secured by the mortgage
3. Claims of persons holding subsequent mortgages in their order
4. The balance, if any, shall be paid to the mortgagor, or person holding under him

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CONCURRENCE AND PREFERENCE OF CREDITS

Concurrence of credits; defined


It implies the possession by two or more creditors of equal rights or privileges over the same property or all of the
property of a debtor.

Preference of credit; defined


Is the right held by a creditor to be preferred in the payment of his claim above others out of the debtors assets.

Art. 2236

As a rule, the debtor is LIABLE WITH ALL THI PROPERTY, present and future, for the fulfillment of his
obligations.

To this rule, the law provides for property which are exempt from such fulfillment.
1. The judgment obligors family home as provided by law or the homestead in which he resides, and land necessarily
used in connection therewith.
2. Ordinary tools and implements personally used by him in his trade, employment, or livelihood.
3. Three horses, or three cows, or three carabaos, or other beast of burden, such as the judgment obligor may select,
necessarily used by him in his ordinary occupation.
4. His necessary clothing, and articles for ordinary personal use, excluding jewelry
5. Household furniture and utensils necessary for housekeeping.
6. Provisions for individual or family use sufficient for four months.
7. The professional libraries of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergyman,
teachers, and other professionals, not exceeding three hundred thousand pesos in value.
8. One fishing boat and accessories, not exceeding the total value of one hundred thousand pesos, owned by a
fisherman and by the lawful use of which he earns his livelihood.
9. Salaries, wages, or earnings of the judgment debtor for his personal services within the four months preceding the
levy as are necessary for the support of his family.
10. Lettered gravestones
11. Moneys, benefits, privileges, or annuities accruing out of any life insurance.
12. The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from
the government.
13. Properties especially exempted by law.

Art. 2237. See Article

Art. 2238

Exemption of conjugal partnership or absolute community property.


The assets of the conjugal partnership or the absolute community do not pass to the assignee in insolvency elected by
the creditors or appointed by the court as they do not belong to the individual spouses, but a distinct entity the
partnership or the community. The exemption applies provided that:
1. The conjugal partnership or community SUBSIST; and
2. The obligations of the insolvent spouse have NOT redounded to the benefit of the family.

Art. 2239

Rule involving undivided share or interest of a co-owner


If there is co-ownership and one of the co-owners is the insolvent debtor, his undivided share or interest in the
property shall be possessed by the assignee in insolvency proceedings because it is part of his assets.

The share of the other co-owners cannot of course, be taken possession of by the assignee.

Art. 2240

Rule involving PROPERTY HELD IN TRUST


The trustee is not, strictly speaking the owner of the trust property although he has the legal little thereto. Hence,
property held in trust by the insolvent debtor should be EXCLUDED from the insolvency proceedings.

Concurrence and Preference of Credits

Order of Payment
After the debtors assets have been liquidated unless a composition has been agreed upon by the creditors,
obligations of the debtor shall be paid in the following order.

1. Equitable claims enumerated in Sec.48 of the insolvency Law.


2. Preferred claims under arts.2241 and 2242 of the civil code.
3. Preferred claims under art.2244 of the civil code and
4. Ordinary claims under Sec.49 of the insolvency Law.
Equitable claims (PP-LU-MHOC-NI-MIP-MBOC-GWT)
The equitable claims enumerated in Sec.48 of the Insolvency law which are entitled to first

priority in payment are

1. Paraphernal property of the debtors wife


2. Property held by under lease or usufruct or on deposit or for administration.
3. Merchandise held by debtor on commission, for forwarding or on consignment and purchase price from
sales on consignment.
4. Negotiate instrument sent to debtor for collection and the money collect thereby.
5. Money in debtors possession for remittance to others.
6. Merchandize bought on credit; if no delivery has been made.
7. Goods wrongfully taken by the debtor.
Preferred claims under the civil code:
Arts. 2241, 2242 and 2244 of the civil code lays over the rules with respect to preference and concurrence of credits.

A. Art. 2241
[D-M-V-CGPC-CMRSPPP OTM thus MRKoP

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-EOS upon GS

-C btn LL & T (Tenancy)

-C4T upon GC (Carriers Lien)

C4LAS (Innkeepers lien)

C4S&E4C&HA2D
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With respect to specific movable property of debtor, the following claims are preferred.

1. Duties, taxes, and fees due.


2. Claims arising from malversation (misappropriation, breach of trust, malfeasance by PO on the MP
or M or S obtained by them).
3. Vendors lien (claims for unpaid price of movables sold in possession of debtor)
4. Claims secured by pledge on chattel mortgage.
5. Credit for Mechanics lien
6. Lien of laborers for wages over goods manufactured or work done.
7. Salvage
8. Tenancy
9. Carriers lien
10. Innkeepers lien
11. Crop loan
12. Rentals for one year
13. Property on deposit that has been wrongfully sold.

B. Art. 2242
T-U-C-F-MCR

RE-AOE- CoCH-CoD-CoI

With respect to specific real property, the following claims shall be preferred

1. Taxes due (uLOB)


2. Unpaid price of realty sold, upon the Immovable sold.
3. Contractors lien
(LMM & W)

4. Lien of suppliers of materials (COFOM used for CRR)


5. Mortgage credits recorded in ROP upon registered REM.
6. Reimbursable expenses for improvement and prevention of real estate.
7. Credits or property upon which attachments or executions have been made.
8. Claims of co-heirs for warranty in the partition of an immovable among them.
9. Claims of donors for pecuniary or other charges on the immovable donated; and
10. Claims of insurers upon insured property, f
11. or premiums not exceeding two years.

C. Art. 2244
With respect to property other than those enumerated in arts 2241 and 2242, in the order named;

F-S-EI-C-D

SDI-F&CI-LE-TNG-TPG

DTorts

G due CI

C w/o SP in PD or FJ

1. Funeral expenses of debtor and his children, when approved by Court.

2. Credits for services rendered by employees and household help.


3. Expenses incurred during last illness of debtor, his spouse and children.
4. Compensation due laborers in cases of labor accident or illness resulting from nature of employment.
5. Debts incurred by debtor for support of his family during the year proceeding insolvency.
6. Support during insolvency proceedings and for three months thereafter.
7. Fines and civil indemnifications a5rising from crime.
8. Legal and other expenses for administration of insolvents estate.
9. Taxes due national government.
10. Taxes due provincial government
11. Taxes due city or municipal government.
12. Damage arising from a quasi-delict or tort.
13. Gifts due to charitable institutions, and
14. Credits without special privilege appearing in a public document or resulting from a final judgment.
Real Estate Mortgage Law
(Act 3135, as amended by RA 4118)

a. Coverage

Governs sales made under a special power inserted in or attached to any real-estate
mortgage, which is made as security for the payment of money or the fulfillment of any other
obligation. The Act will govern the manner in which the sale and redemption shall be effected,
whether or not provision for the same is made in the power. (Sec 1, Act 3135)

The law covers only real estate mortgages. It is intended merely to regulate the extrajudicial
sale and redemption of the property if and when the mortgagee is given a special power or express
authority to do so in the deed itself or in a document annexed thereto.

b. Remedies available to mortgagee upon default of the mortgagor

The mortgagee has a choice of one (1) of two (2) remedies, but he cannot have both. The
mortgagee may (i) foreclose the mortgage or (ii) file an ordinary action to collect the debt, i.e.
specific performance.

When the mortgagee chooses the foreclosure of the mortgage as a remedy, he enforces his
lien by the sale on foreclosure of the mortgaged property. The proceeds of the sale will be applied to
the satisfaction of the debt. With this remedy, he has a prior lien on the property. In case of a
deficiency, the mortgagee has the right to claim for the deficiency resulting from the price obtained in
the sale of the real property at public auction and the outstanding obligation at the time of the
foreclosure proceedings. (Soriano v. Enriquez, 24 Phil. 584; Banco de Islas Filipinas v. Concepcion
Hijos, 53 Phil. 86; Banco Nacional v. Barreto, 53 Phil. 101)

On the other hand, if the mortgagee resorts to an action to collect the debt, he thereby waives
his mortgage lien. He will have no more priority over the mortgaged property. If the judgment in the
action to collect is favorable to him, and it becomes final and executory, he can enforce said
judgment by execution. He can even levy execution on the same mortgaged property, but he will not
have priority over the latter and there may be other creditors who have better lien on the properties
of the mortgagor. Caltex Phils. vs. IAC, August 25, 1989

If mortgagor issues post-dated checks, resorting to a criminal action for violation of BP 22 also
precludes the remedy of foreclosure and vice versa. Recovery of the amount due is deemed included
in the action for violation of BP 22.

TIP: If the mortgage covers the total claim, then foreclose. If not, still foreclose for after all
you can still collect the deficiency from the principal debtor (if mortgagor is a third person), not the
mortgagor unless the latter bound himself solidarily liable with the borrower. Make it a last resort to
file a criminal action because in reality it takes much longer to pursue BP 22.

c. Need for special power of attorney

Under Section 1 of Act No. 3135, a special power of attorney must be inserted in or attached
to any Real Estate Mortgage.
Without proof of petitioner's special authority to foreclose, the Clerk of Court as Ex-Oficio
Sheriff is precluded from acting on the application for extrajudicial foreclosure. (Office of the Court
Administrator v. Pardo, RTJ-08-2109, April 30, 2008; Casano v. Magat, 425 Phil. 356, 360-361
(2002); Paguyo v. Gatbunton, A.M. No. P-06-2135, May 25, 2007, 523 SCRA 156, 161).

d. Authority to foreclose extrajudicially

A mortgage may be foreclosed extrajudicially where there is inserted in the contract a clause
giving the mortgagee the power upon default of the debtor, to foreclose the mortgage by an
extrajudicial sale of the mortgaged property. The authority to sell is not extinguished by the death of
the mortgagor (or mortgagee).

e. Procedure

(1) Where to file

All applications shall be filed with the Executive Judge through the Clerk of Court, who is also
the Ex-Officio Sheriff. See Sec. 1, Circular No. 7-2002, Guidelines for the enforcement of Supreme
Court Resolution of December 14, 1999 in A.M. no. 99-10-05-0 (re: Procedure in extra-judicial
foreclosure of mortgage), as amended by the Resolutions dated January 30, 2001 and August 7,
2001.

(2) Where to sell

Province where the property is situated. (Sec. 2, R.A. 3135, as amended) Sale cannot be made
legally outside of the province in which the property sold is situated.

If venue is subject to stipulation, such sale shall be made in said place (i.e., the place so
stipulated) or in the municipal building of the municipality in which the property or part thereof is
situated. (ibid.)

(3) Posting requirement

Notice of the sale is posted in at least three (3) public places of the municipality or city
(Sheriffs Office, Assessors Office and Register of Deeds) where the property is situated for not less
than twenty (20) days and published once a week for at least three (3) consecutive weeks in a
newspaper of general circulation in the municipality or city (Sec. 3, ibid). Posting of notice on
mortgaged property not required.

Failure to advertise a mortgage foreclosure sale in compliance with statutory requirements


constitutes a jurisdictional defect invalidating the sale. A substantial error or omission in a notice of
sale will render the notice insufficient and vitiate the sale. (PNB v. Nepomuceno, 394 SCRA 405,
2002)

(4) Publication requirement

(a) Sufficiency of newspaper publication


Notice shall also be published once a week for at least three (3) consecutive weeks in a
newspaper of general circulation. The newspaper need not have the largest circulation so long as it is
of general circulation. To be a newspaper of general circulation, it is enough that it is published for
the dissemination of local news and general information; that it has a bona fide subscription list of
paying subscribers; and that it is published at regular intervals. The newspaper must not be devoted
to the interests or entertainment of a particular class, profession, trade, calling, race or religious
denomination. The newspaper need not have the largest circulation so long as it is of general
circulation (Perez vs. Perez (2005)) in the municipality or city where the property is
located. Metrobank v. Peafiel, G.R. No. 173976 Feb. 27, 2009

(b) Need for republication in case of postponement

Republication is necessary for the validity of a postponed extrajudicial foreclosure sale.


Another publication is required in case the auction sale is rescheduled, and the absence of such
republication invalidates the foreclosure sale. The last paragraph of the prescribed notice of sale
(under SC Circular 7-2002) allows the holding of a rescheduled auction sale without reposting or
republication of the notice. In the event the public auction should not take place on the said date, it
shall be held on ___________,______ without further notice. However, the rescheduled auction sale
will only be valid if the rescheduled date of auction is clearly specified in the prior notice of sale. The
absence of this information in the prior notice of sale will render the rescheduled auction sale void for
lack of reposting or republication. (DBP vs. Emerald Resorts Hotel)

(c) Personal notice to the mortgagor when and when not needed

General Rule: Personal notice to the mortgagor is not generally required. Exception: Unless required
in the mortgage contract, the lack of personal notice to the mortgagor is not a ground to set aside a
foreclosure sale.

Unless otherwise stipulated by the parties to the mortgage contract, the debtor-mortgagor
need not be personally served a copy of the notice of the extra- judicial foreclosure. SC Circular 7-
2002

f. Possession by purchaser of foreclosed property

Upon failure of the debtor to redeem the property within one (1) year after the date of the
registration of the certificate of sale, winning bidder becomes the absolute owner.

g. Remedy of debtor if foreclosure is not proper

Within thirty (30) days after the purchaser is given possession of the property, the debtor may
petition that the sale be set aside on the ground that the mortgage was not violated or the sale was
not made in accordance with the provisions of Act 3135. (Sec. 8. This may be done in the
proceedings in which possession was requested)

h. Redemption
Right of Redemption is the right of the mortgagor to redeem the mortgage property within a
certain period (1 year) after it was sold for the satisfaction of the mortgage debt.

Requisites for valid redemption:


1. Redemption within 1 year from registration of sale;
2. Payment of purchase price plus 1% interest per month thereon if any, paid by purchaser; and
3. Written notice of redemption served on officer who made the sale.

(1) Who may redeem

a. The debtor;
b. The debtor's successors-in-interest;
c. Any judicial creditor or judgment creditor of the debtor;
d. Any person having a lien on the property subsequent to the mortgage or deed of trust under which
the property is sold (Redemption price to be paid by accommodation mortgagors).

(2) Amount of Redemption price

a. Limited to the winning bid price plus twelve percent (12%) interest per annum.
b. Purchase price if judgment obligor. Sum paid on last redemption if redemptioner. (Rule 39, Sec.
28, Rules of Court). The redemptioner should make an actual tender in good faith of the full amount
of the purchase price (Hi-Yield Realty vs. CA(2002)

(3) Period for redemption

Natural persons: Within 1 year from and after the date of the sale.Sec. 6
Juridical persons: Until but not after the registration of the certificate of foreclosure sale with the
applicable Register of Deeds, which in no case shall be more than 3 months after foreclosure,
whichever is earlier. (Sec. 47, R.A. 8791)

(4) Effect of pendency of action for annulment of sale

The filing of court action to enforce redemption has effect of preserving the redemptioners
rights; and freezing the expiration of one year period to redeem. (Banco Filipino v Court of Appeals)

i. Writ of possession

(1) Ministerial duty of the court

The duty of the trial court to grant a writ of possession is ministerial. Such writ issues as a
matter of course upon the filing of the proper motion and the approval of the corresponding bond.
Any question regarding the regularity and validity of the sale is to be determined in a subsequent
proceeding. (Sec. 8). Mandamus will lie.

The judge to whom an application for writ of possession is filed need not look into the validity
of the mortgage or the manner of its foreclosure. In the issuance of a writ of possession, no
discretion is left to the Trial Court. Any question regarding the cancellation of the writ in respect to
the validity/regularity of the foreclosure sale or the mortgage should be determined in a subsequent
proceeding (PNB v. Sanao). Such question cannot be raised to oppose the issuance of the writ, since
the proceeding isex parte. (Samson vs Rivera, 2004)

After the consolidation of title in the buyers name for failure of the mortgagor to redeem, the
writ of possession becomes a matter of right

(2) Enforcement against third parties

The purchaser or last redemption shall be entitled to possession of the property upon the
finality of the order of confirmation or upon the expiration of the period of redemption, unless a third
party is actually holding the same adversely to the judgment debtor.

(3) Pendency of action for annulment of sale

The pendency of a separate civil suit questioning the validity of the sale of the mortgaged
property cannot bar the issuance of the writ of possession. DBP vs Spouses Gatal (2005)

j. Annulment of sale (See g. Remedy of debtor if foreclosure is not proper, supra)


REPUBLIC ACT No. 3135

AN ACT REVISING ACT NUMBERED THIRTY-TWO HUNDRED SIXTY-TWO, OTHERWISE KNOWN AS THE
CHARTER OF THE PHILIPPINE AMATEUR ATHLETIC FEDERATION.

Section 1. Short title. This Act shall be known as the Revised Charter of the Philippine Amateur Athletic Federation.

Section 2. Original Creation and membership of the Philippine Amateur Athletic Federation. Manuel L. Quezon,
Camilo Osias, Alejandro Albert, H. A. Bordner, R. S. Fitz, Kenneth Rowntree, Regino R. Ylanan, Jorge R. Varga, E.
S. Turner, V. Buencamino, C. J. Bott, Joaquin Alviar, Fred O. England, C. Preysler, Gabriel Ubago Geo, R.
Summers, Martin Eiguren, Damaso Garcia Bosque, J. A. Murphy, W. N. Bartholomew, Silvestre Torres, Theo S. Hall,
C. John, R. R. Garcia, P. Dulay, H. L. Noble, J. Truitt Maxwell, Vicente Wenceslao, Adam C. Dorkum, and their
successors in interest and the National Sports' Associations hereinafter provided are hereby created a body
corporate and public in the Philippines, to be known as the "Philippine Amateur Athletic Federation" with such
corporate powers as may be necessary to carry out the purposes of the Act.

Section 3. Purposes of the Corporation. The purposes of this corporation are: (a) to encourage physical education
and fitness; (b) to promote and improve athletic sports among amateurs; (c) to establish and maintain a uniform test
of amateur standing and uniform rules for the government of all athletic sports; (d) to develop the spirit of
sportsmanship and fair play; and (e) to encourage and promote the establishment of sports centers, public
playgrounds and recreational facilities.

Section 4. Board of Governors; Composition. The Philippine Amateur Athletic Federation shall have a Board of
Governors to be composed of all surviving incorporators and three representatives from each National Sports'
Association recognized by the Philippine Amateur Athletic Federation: Provided, however, That no representative of
any National Sports' Association shall represent more than one association in the Board.

Section 5. Functions, powers and duties of the Board. The Board of governors shall have the following functions,
powers and duties:

1. To adopt a constitution and by-laws;

2. To adopt a uniform set of rules to determine and govern amateur athletes and sports in the Philippines;

3. To adopt rules and regulations, consistent with administrative due process, to govern the procedure to be
observed by the National Sports' Association and the executive committee in hearing and deciding cases
before them either on initial hearing or an appeal;

4. To suspend for cause a member-association of the federation by a vote of two-thirds of the board and
withdrawn recognition of an association by a vote of three-fourths of the board. The reinstatement to active
status of the association affected shall be effected in the same manner;

5. To authorize the executive committee to negotiate and conclude, for and in behalf of the federation,
transactions for the acquisition, disposition, and encumbrance of real or personal property as well as the
raising of funds for the accomplishment of the purposes of the federation.

Section 6. Meeting, quorum of the Board. The board of governors shall have an annual general meeting at such
time and place as may be provided by its constitution and by laws. Special meetings may be called by the President
either at his own initiative or upon the request of one-third of the members of the board.
At all meetings of the board, the presence of a majority of the members thereof shall constitute a quorum for the
valid transaction of business. Each member of the Board shall be entitled to only one vote and no vote by proxy
shall be allowed.

Section 7. Officers of the Corporations. The Philippine Amateur Athletic Federation shall have a President, a first
and a second Vice-President, and an executive secretary-treasurer. The officers shall be elected by the Board from
among its members with the exception of the President and the exclusive secretary-treasurer who may or may not
be members of the board: Provided, however, That the President and the executive secretary-treasurer must be
persons who are known for their dedication to sports in general.

The President and Vice-Presidents shall serve for a term of two years and the executive secretary-treasurer for a
term of four years beginning on the first day of the month following their election and until their successors shall
have been elected and qualified: Provided, however, That no officer's position shall be deemed vacated if he ceases
to be the representative of his association in the board and such vacancy may be filled for the unexpired term by
special election at a meeting of the board called for that purpose.

Section 8. Executive committee. There shall be an executive committee which shall be composed of the President,
the two Vice-Presidents, and the executive secretary-treasurer of the federation, one representative from each
National Sports' Association to be appointed by each association from among its representatives in the Board of
Governors, and three members-at-large to be selected by the executive committee, one from the Senate, one from
the House of Representatives and one from the Office of the President. The executive committee may at its
discretion select two additional members-at-large from the general public.

The National Sports' Association to which the President of the Federation belongs shall appoint another
representative to represent it in the executive committee.

Section 9. Powers, functions and duties of executive committee. The executive committee shall have the following
powers, functions and duties:

1. To implement all the policies and decisions laid down by the Board of Governors;

2. To prepare an annual budget and submit the same for the approval of the Board of Governors at the
annual meeting;

3. To coordinate and harmonize the activities of all National Sports' Associations;

4. To administer the common properties and stadia of the Philippine Amateur Athletic Federation and assist
in the maintenance of existing athletic facilities in regional sports centers, subject to the conditions that it
may impose;

5. To adopt such rules and regulations as may be necessary for the discharge of its functions and consistent
herewith;

6. To maintain, enforce, and defend the exclusive right of the federation to the use of the work "The
Olympic", Olympic shield, all Olympic insignia, and all other Philippine Sports' insignia that it or the National
Sports' Associations may design and prescribe for use by Filipino Athletes of whatever nature, and to
confine their use to activities and publicity concerned with the Olympic games, and with the purposes,
powers, and procedures of the federation;
7. To act and decide on all appeals brought before it regarding controversies on the amateur status of
athletes and teams, as well as those arising between members of the federation and between the
associations and their members; and

8. To encourage and promote the establishment of sports centers, public playgrounds and recreational
facilities.

Section 10. Formation of Board of Governors and Executive Committee. The Board of Governors and Executive
Committee hereinbefore provided shall be formed and organized for the effective discharge of their functions herein
as soon as nine National Sports' Associations shall have been fully organized and operating and shall assume their
rights and duties hereunder.

Section 11. National Sports' Association; organization and recognition. A National Association shall be organized for
each individual sports in the Philippines in the manner hereinafter provided to constitute the Philippine Amateur
Athletic Federation.

Applications for recognition as a National Sports' Association shall be filed with the executive committee together
with, among others, a copy of the constitution and by-laws and a list of the members of the proposed association,
and a filing fee of ten pesos.

The Executive Committee shall give the recognition applied for if it is satisfied that said association will promote the
purposes of this Act and particularly section three hereof. No application shall be held pending for more than three
months after the filing thereof without any action having been taken thereon by the executive committee. Should the
application be rejected, the reasons for such rejection shall be clearly stated in a written communication to the
applicant. Failure to specify the reasons for the rejection shall not affect the application which shall be considered as
unacted upon: Provided, however, That until the executive committee herein provided shall have been formed,
applications for recognition shall be passed upon by the duly elected members of the present executive committee
of the Philippine Amateur Athletic Federation. The said executive committee shall be dissolved upon the
organization of the executive committee herein provided: Provided, further, That the functioning executive committee
is charged with the responsibility of seeing to it that the National Sports' Associations are formed and organized
within six months from and after the passage of this Act.

Section 12. Nature of Associations. The National Sports' Associations formed herein shall be autonomous in
character and shall have exclusive control over the development and promotion of the particular sports for which
they are organized.

Section 13. Membership. Each National Sports' Association shall, by its constitution and by-laws, determine its
organization and membership: Provided, however, That no team, school, club, organization, or entity shall be
admitted as a voting member of an association unless 60% of the athletes composing said team, school, club,
organization, or entity are Filipino citizens.

Section 14. Functions, powers and duties of Associations. The National Sports' Association shall have the following
functions, powers and duties:

1. To adopt a constitution and by-laws for their internal organization and government;

2. To raise funds by donations, benefits, and other means for their purposes;

3. To purchase, sell, lease or otherwise encumber property both real and personal, for the accomplishment
of their purpose;
4. To affiliate with international or regional sports' Association after due consultation with the executive
committee;

5. To conduct local, interport and international competitions, other than the Olympic and Asian Games, they
may deem necessary for the promotion of the sport;

6. To render an annual report to the executive committee regarding their finances and activities which shall
be submitted at least thirty days before the annual meeting of the Board of Governors;

7. To appoint their representatives to the Board of Governors and the executive committee;

8. To decide, subject to appeal to the executive committee, all questions on the amateur status and
discipline of the athletes connected with the associations, as well as the members thereof and all disputes
between their members;

9. To adopt a training program for the development of athletes and their preparation for international
competitions and to defray the expenses for the same;

10. To select the athletes, coach, and other officials for their national teams taking into consideration not only
their athletic abilities but also their moral character.

11. To keep accurate records of all official marks attained by the athletes in the associations in all
competitions as well as all results of sports competitions, recognize and ratify the same, and furnish copies
thereof to the executive committee;

12. To qualify and license referees and umpires and other game officials who shall officiate in competitions in
their respective sports; and

13. To perform such other acts as may be necessary for the proper accomplishment of their purposes and
not inconsistent with this Act.

Section 15. Restriction on holding of office. No person shall be eligible for election as president or as the head of
more than one National Sports' Association.

Section 16. Formation of National Olympic Committee. The National Olympic Committee shall be composed of the
members of the executive committee whose sports are included in the Olympic program, the three members
representing the Senate, the House of Representatives and the Office of the President, and the representative of
the International Olympic Committee. This committee shall function in accordance with the rules of the International
Olympic Committee.

Section 17. Business location. The Philippine Amateur Athletic Federation and all National Sports' Association
organized hereunder shall have their principal place of business either in Manila or Quezon City.

Section 18. Properties and funds of the Philippine Amateur Athletic Federation. The properties and funds of the
Federation shall be of two kinds, namely, common and particular.

Common funds and properties are such monies and real or personal properties that belong to the Philippine
Amateur Athletic Federation for general use by the members thereof.

Common properties of the federation comprise the Rizal Memorial Stadia and such other real and personal
properties owned and operated by the Philippine Amateur Athletic Federation created under Act Numbered Thirty-
two hundred sixty-two, and those which the federation may acquire hereafter. Common funds of the federation
comprise the following:

(a) The net receipts from Philippine Charity Sweepstakes races and, for this purpose, the Philippine Amateur
Athletic Federation shall be entitled to the receipts of three sweepstakes races a year, any law to the
contrary notwithstanding.

(b) Donations, bequests and devises, as well as receipts from benefit games and other kinds of benefits
conducted by the federation.

(c) Annual dues from the National Sports' Associations.

(d) Income realized from its real and personal properties.

(e) Receipts from any other funds.

(f) Stocks, bonds, monies and other forms of credit owned by the Philippine Amateur Athletic Federation
created under Act Numbered Thirty-two hundred sixty-two and those which the federation may subsequently
acquire.

Particular properties and funds are those revised or acquired by the National Sports' Associations for their exclusive
use and the ownership and control of which shall remain with them. Should any association be subsequently
dissolved or ceased to exist its properties and funds shall be held in trust by the federation and may be utilized as in
the case of common properties and funds until such time as they shall again be needed by the successor of the
dissolved or defunct association.

Particular properties of National Sports' Associations shall comprise such real and personal properties as shall be
owned by them by purchase, donations, bequests, or otherwise.

Particular funds of National Sports' Association shall comprise the following:

(a) Monies raised through donations and receipts from benefit games, and officially conducted competitions.

(b) Annual dues from their respective members, the annual dues to be paid to the federation by each
association shall be determined by the executive committee after taking into consideration the paying
capacity of the Association concerned, while that to be paid to the National Sports' Association by their
respective members shall be determined by each association.

Section 19. Presidential Land Grant. The provisions of any existing law to the contrary notwithstanding, the
President, upon the recommendation of the Secretary of Agriculture and Natural Resources may, by donation, sale,
lease or otherwise, grant to the Philippine Amateur Athletic Federation portions of the land of the public domain as
may be necessary to carry out the purposes of this Act.

Section 20. Expenditures of funds and uses of properties. Common funds of the federation shall be expended for
any or all of the following purposes:

(a) To defray the administrative expenses of the federation.

(b) To defray the expenses for the maintenance, preservation, and improvement of the common properties
of the federation.
(c) To defray the transportation, equipment and board and lodging expenses of Philippine Athletic
delegations and participants to the Olympics and Asians Games and other International competitions as well
as the preparation for the holding of Olympic competitions and Asian games in the Philippines:Provided,
however, That should the funds not be sufficient for the purpose, voluntary contributions may be secured
from the Associations but such contribution shall first be applied to defray the expenses of the Association
making the contribution.

Particular funds of the National Sports' Associations shall be expended for the accomplishment of their respective
purposes.

Section 21. Use of facilities. Subject to regulations of the federation, its playgrounds and stadia shall be available
for the use of the association and their members in preference to all others and, for such use, they shall be charged
a rental to be determined by the executive committee.

Section 22. Exemption of income and properties from taxes. Any laws to the contrary notwithstanding, all income,
properties, and importation of sports equipment and materials by the Philippine Amateur Athletic Federation and the
members shall be exempt from amusement, real property, specific taxes and all other taxes and duties:Provided,
however, That the sports equipment and material imported herein shall be for the exclusive use of the federation,
the associations and their athlete members and are not to be disposed of for commercial purposes or for profit.

Section 23. Effect of non-membership in the federation. From and after the date of the approval of this Act, no
individual athlete, team, club, or organization engaged in sports activities who is not a member of an association as
formed hereunder shall be allowed to participate in the national open championships and represent the Philippines
in any competition at home or abroad or to enjoy the privileges hereunder.

Section 24. Penal Clause. A penalty of not exceeding one year imprisonment or a fine of not more than one
thousand pesos or both at the discretion of the court shall be imposed upon any person who:

a. Shall solicit funds for any of the purposes mentioned in this Act without being authorized to do so
hereunder or by the Philippine Amateur Athletic Federation or its member Associations;

b. Shall, without authority, use the word "Olympic", the Olympic shield, Olympic insignia and such other
emblem designed and prescribed by the federation or any association for the exclusive use of Filipino
Athletic members.

c. Shall sell or otherwise dispose of the sports equipment and material mentioned in section eighteen hereof
for commercial purposes or for profit.

Section 25. Appropriation for the formation of National Sports' Associations. There shall be appropriated from
thousands of the National Treasury not otherwise appropriated the sum of One hundred thousand pesos for the
purpose of defraying the expenses in the formation of National Sports' Associations as provided herein.

Section 26. Repealing clause. Act Numbered Three thousand two hundred and sixty-two and all other Acts,
Executive orders, rules and regulations or parts thereof inconsistent herewith are hereby repealed.

Section 27. Separability clause. In the event any provision of this Act or the application of such provision to any
person or circumstance is declared unconstitutional, the remainder of this Act or the application of said provision to
other persons or circumstances shall not be affected thereby.

Section 28. This Act shall take effect upon its approval.
Approved: June 17, 1961