SPOUSES DEO AGNER and MARICON AGNER vs. BPI FAMILY SAVINGS BANK, INC. G.R. No. 182963 June 3, 2013

 

Petitioners, Spouses Deo and Maricon Agner executed a Promissory Note with Chattel Mortgage in favor of Citimotors, Inc. The contract provides, among others, that: for receiving the amount of Php834,768.00, petitioners shall pay Php17,391.00 every 15th day of each succeeding month until fully paid; the loan is secured by a 2001 Mitsubishi Adventure Super Sport; and an interest of 6% per month shall be imposed for failure to pay each installment on or before the stated due date.

 

On the same day, Citimotors, Inc. assigned all its rights, title and interests in the Promissory Note with Chattel Mortgage to ABN AMRO Savings Bank, Inc. which likewise assigned the same to respondent BPI Family Savings Bank, Inc.

 

For failure to pay four successive installments, respondent sent to petitioners a demand letter, declaring the entire obligation as due and demandable and requiring to pay Php576,664.04, or surrender the mortgaged vehicle immediately upon receiving the letter. As the demand was left unheeded, respondent, BPI, filed an action for Replevin and Damages before the RTC. RTC ruled in favor of BPI. Petitioners appealed to Court of Appeals and argued that they cannot be considered to have defaulted in payment for lack of competent proof that they received the demand letter.

 

Q: Is the argument of petitioner tenable?

 

A: No, the argument of petitioner is untenable. The Civil Code in Article 1169 provides that one incurs in delay or is in default from the time the obligor demands the fulfillment of the obligation from the obligee. However, the law expressly provides that demand is not necessary under certain circumstances, and one of these circumstances is when the parties expressly waive demand. Hence, since the co-signors expressly waived demand in the promissory notes, demand was unnecessary for them to be in default. Further, the Court even ruled in Navarro v. Escobido that prior demand is not a condition precedent to an action for a writ of replevin, since there is nothing in Section 2, Rule 60 of the Rules of Court that requires the applicant to make a demand on the possessor of the property before an action for a writ of replevin could be filed.

 

In this case, records bear that both verbal and written demands were in fact made by respondent prior to the institution of the case against petitioners. Even assuming, for argument’s sake, that no demand letter was sent by respondent, there is really no need for it because petitioners legally waived the necessity of notice or demand in the Promissory Note with Chattel Mortgage, which they voluntarily and knowingly signed in favor of respondent’s predecessor-in-interest.