Lesson Applicable: Despite writ of replevin, failed to seize, can ask for fulfillment of the obligation
Laws Applicable: Rule 60
o February 15, 2001: Sps. Deo Agner and Maricon Agner executed PN without prior notice or demand with Chattel Mortgage in favor of Citimotors, Inc. secured by a 2001 Mitsubishi Adventure Super Sport; and an interest of 6%/month for failure to pay each installment. Citimotors assigned them to ABN AMRO Savings Bank, Inc. which assigned them to BPI Family Savings Bank o October 4, 2002: Due to failure to pay despite demand, BPI filed on an action for Replevin and Damages in RTC of Manila o RTC: issued writ of replevin but vehicle was not seized. o RTC (trial on merits): ordered Sps. to jointly and severally pay the amount of Php576,664.04 plus interest at the rate of 72%/annum o CA: affirmed; MR denied
o HELD (petition for review on certiorari): denied; affirmed with modification lowering interest to 1%/month o The Civil Code in Art. 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 o Navarro v. Escobido: 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. o Bank of the Philippine Islands v. Spouses Royeca: x x x The creditor's possession of the evidence of debt is proof that the debt has not been discharged by payment. A promissory note in the hands of the creditor is a proof of indebtedness rather than proof of payment. In an action for replevin by a mortgagee, it is prima facie evidence that the promissory note has not been paid. Likewise, an uncanceled mortgage in the possession of the mortgagee gives rise to the presumption that the mortgage debt is unpaid. o Elisco Case: The remedies provided for in Art. 1484 are alternative, not cumulative. The exercise of one bars the exercise of the others. At the same time, it prayed for the issuance of a writ of replevin or the delivery to it of the motor vehicle o Compared with Elisco, the vehicle subject matter of this case was never recovered and delivered to respondent despite the issuance of a writ of replevin. As there was no seizure that transpired, it cannot be said that petitioners were deprived of the use and enjoyment of the mortgaged vehicle or that respondent pursued, commenced or concluded its actual foreclosure. The trial court, therefore, rightfully granted the alternative prayer for sum of money, which is equivalent to the remedy of "exacting fulfillment of the obligation." Certainly, there is no double recovery or unjust enrichment to speak of.