G.R. NO. 172175 - SPS. EXPEDITO ZEPEDA AND ALICE D. ZEPEDA, VS. CHINA BANKING CORPORATION.DECISION - Supreme Court E-Library

Ruling

accordingly supersede the original mortgage thus making the subsequent foreclosure void. Similarly, the allegation of lack of notice if subsequently proven renders the foreclosure a nullity in line with prevailing jurisprudence. [11] We find the allegations in the complaint sufficient to establish a cause of action for nullifying the foreclosure of the mortgaged property. The fact that petitioners admitted that they failed to redeem the property and that the title was consolidated in respondent bank's name did not preclude them from seeking to nullify the extrajudicial foreclosure. Precisely, petitioners seek to nullify the proceedings based on circumstances obtaining prior to and during the foreclosure which render it void. Anent the second issue, we do not agree with the Court of Appeals' ruling that the complaint should be dismissed for failure of petitioners to answer respondent bank's written interrogatories. It should be noted that respondent bank filed a motion to expunge the complaint based on Section 3(c) of Rule 29 which states: SEC. 3. Other consequences . - If any party or an officer or managing agent of a party refuses to obey an order made under section 1 [12] of this Rule requiring him to answer designated questions, or an order under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property, or an order made under Rule 28 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following: x x x x (c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; and x x x x. [13] As we have explained in Arellano v. Court of First Instance of Sorsogon , [14] the consequences enumerated in Section 3(c) of Rule 29 would only apply where the party upon whom the written interrogatories is served, refuses to answer a particular question in the set of written interrogatories and despite an order compelling him to answer the particular question, still refuses to obey the order. In the instant case, petitioners refused to answer the whole set of written interrogatories, not just a particular question. Clearly then, respondent bank should have filed a motion based on Section 5 and not Section 3(c) of Rule 29. Section 5 of Rule 29 reads: SEC. 5. Failure of party to attend or serve answers . - If a party or an officer or managing agent of a party willfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories, the court on motion and notice, may strike out all or any part of any pleading of that party, or dismiss t