Agner vs. BPI Family Savings Bank, Inc.

SUPREME COURT REPORTS ANNOTATED VOLUME 697 1/23/18, 10:12 PM
G.R. No. 182963. June 3, 2013.*
SPOUSES DEO AGNER and MARICON AGNER,

petitioners, vs. BPI FAMILY SAVINGS BANK, INC.,
respondent.
Remedial Law; Civil Procedure; Appeals; An issue is factual

when the doubt or difference arises as to the truth or falsehood of
alleged facts, or when the query invites calibration of the whole
evidence, considering mainly the credibility of witnesses, existence
and relevancy of specific surrounding circumstances, their relation
to each other and to the whole, and the probabilities of the situation.
·With respect to the first issue, it would be sufficient to state that
the matter surrounding the Deed of Assignment had already been
considered by the trial court and the CA. Likewise, it is an issue of
fact that is not a proper subject of a petition for review under Rule
45. An issue is factual when the doubt or difference arises as to the
truth or falsehood of alleged facts, or when the query invites
calibration of the whole evidence, considering mainly the credibility
of witnesses, existence and relevancy of specific surrounding
circumstances, their relation to each other and to the whole, and
the probabilities of the situation. Time and again, We stress that
this Court is not a trier of facts and generally does not weigh anew
evidence which lower courts have passed upon.
Same; Provisional Remedies; Replevin; 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.·A provision on
waiver of notice or demand has been recognized as legal and valid
in Bank of the Philippine Islands v. Court of Appeals, 490 SCRA 168
(2006), wherein We held: 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
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_______________
* THIRD DIVISION.
90
90 SUPREME COURT REPORTS ANNOTATED
Agner vs. BPI Family Savings Bank, Inc.
demand in the promissory notes, demand was unnecessary for them

to be in default. Further, the Court even ruled in Navarro v.
Escobido, 606 SCRA 1 (2009), 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.
Civil Law; Payment; Burden of Proof; Jurisprudence abounds
that, in civil cases, one who pleads payment has the burden of
proving it; the burden rests on the defendant to prove payment,
rather than on the plaintiff to prove non-payment.·Jurisprudence
abounds that, in civil cases, one who pleads payment has the
burden of proving it; the burden rests on the defendant to prove
payment, rather than on the plaintiff to prove non-payment. When
the creditor is in possession of the document of credit, proof of non-
payment is not needed for it is presumed. RespondentÊs possession
of the Promissory Note with Chattel Mortgage strongly buttresses
its claim that the obligation has not been extinguished. As held in
Bank of the Philippine Islands v. Spouses Royeca, 559 SCRA 207
(2008): x x x The creditorÊs 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.
Same; Interest Rates; Settled is the principle which the Supreme
Court has affirmed in a number of cases that stipulated interest
rates of three percent (3%) per month and higher are excessive,
iniquitous, unconscionable, and exorbitant.·Settled is the principle
which this Court has affirmed in a number of cases that stipulated
interest rates of three percent (3%) per month and higher are
excessive, iniquitous, unconscionable, and exorbitant. While Central

Bank Circular No. 905-82, which took effect on January 1, 1983,
effectively removed the ceiling on interest rates for both secured
and unsecured loans, regardless of maturity, nothing in the said
circular could possibly be read as granting carte blanche authority
to lenders to raise interest rates to levels which would either
enslave their borrowers or lead to a hemorrhaging of their assets.
Since the stipula-
91
VOL. 697, JUNE 3, 2013 91
tion on the interest rate is void for being contrary to morals, if not
against the law, it is as if there was no express contract on said
interest rate; thus, the interest rate may be reduced as reason and
equity demand.
PETITION for review on certiorari of the decision and

resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
YF Lim & Associates for petitioners.
Benedicto, Versosa, Felipe & Burkley Law Offices for
respondent.
PERALTA, J.:
This is a petition for review on certiorari assailing the
April 30, 2007 Decision1 and May 19, 2008 Resolution2 of
the Court of Appeals in CA-G.R. CV No. 86021, which
affirmed the August 11, 2005 Decision3 of the Regional
Trial Court, Branch 33, Manila City.
On February 15, 2001, petitioners spouses Deo Agner
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.4 On the same day, Citimotors, Inc. assigned all its
rights, title and
_______________
1 Penned by Associate Justice Vicente Q. Roxas, with Associate
Justices Josefina Guevara-Salonga and Ramon R. Garcia, concurring;
Rollo, pp. 49-54.
2 Id., at p. 56.
3 Records, pp. 149-151.
4 Id., at p. 28.
92

interests in the Promissory Note with Chattel Mortgage to

ABN AMRO Savings Bank, Inc. (ABN AMRO), which, on
May 31, 2002, likewise assigned the same to respondent
BPI Family Savings Bank, Inc.5
For failure to pay four successive installments from May
15, 2002 to August 15, 2002, respondent, through counsel,
sent to petitioners a demand letter dated August 29, 2002,
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.6
As the demand was left unheeded, respondent filed on
October 4, 2002 an action for Replevin and Damages before
the Manila Regional Trial Court (RTC).
A writ of replevin was issued.7 Despite this, the subject
vehicle was not seized.8 Trial on the merits ensued. On
August 11, 2005, the Manila RTC Br. 33 ruled for the
respondent and ordered petitioners to jointly and severally
pay the amount of Php576,664.04 plus interest at the rate
of 72% per annum from August 20, 2002 until fully paid,
and the costs of suit.
Petitioners appealed the decision to the Court of Appeals
(CA), but the CA affirmed the lower courtÊs decision and,
subsequently, denied the motion for reconsideration; hence,
this petition.
Before this Court, petitioners argue that: (1) respondent
has no cause of action, because the Deed of Assignment
executed in its favor did not specifically mention ABN
AMROÊs account receivable from petitioners; (2) petitioners
cannot be considered to have defaulted in payment for lack
of competent proof that they received the demand letter;
and (3) respondentÊs remedy of resorting to both actions of
replevin and collection of sum of money is contrary to the

provision of Arti-
_______________
5 Id., at pp. 29, 33-35.
6 Id., at p. 36.
7 Id., at p. 40.
8 TSN, November 23, 2004, p. 15.
93
VOL. 697, JUNE 3, 2013 93

cle 14849 of the Civil Code and the Elisco Tool

Manufacturing Corporation v. Court of Appeals10 ruling.
The contentions are untenable.
With respect to the first issue, it would be sufficient to
state that the matter surrounding the Deed of Assignment
had already been considered by the trial court and the CA.
Likewise, it is an issue of fact that is not a proper subject of
a petition for review under Rule 45. An issue is factual
when the doubt or difference arises as to the truth or
falsehood of alleged facts, or when the query invites
calibration of the whole evidence, considering mainly the
credibility of witnesses, existence and relevancy of specific
surrounding circumstances, their relation to each other and
to the whole, and the probabilities of the situation.11 Time
and again, We stress that this Court is not a trier of facts
and generally does not weigh anew evidence which lower
courts have passed upon.
As to the second issue, records bear that both verbal and
written demands were in fact made by respondent prior to
the institution of the case against petitioners.12 Even
assuming, for argumentÊs sake, that no demand letter was
sent by re-
_______________
9 ART. 1484. In a contract of sale of personal property, the price of
which is payable in installments, the vendor may exercise any of the
following remedies:
(1) Exact fulfillment of the obligation, should the vendee fail to pay;
(2) Cancel the sale, should the vendeeÊs failure to pay cover two or
more installments;
(3) Foreclose the chattel mortgage on the thing sold, if one has been
constituted, should the vendeeÊs failure to pay cover two or more
installments. In this case, he shall have no further action against the
purchaser to recover any unpaid balance of the price. Any agreement to
the contrary shall be void.
10 G.R. No. 109966, May 31, 1999, 307 SCRA 731.
11 Royal Cargo Corporation v. DFS Sports Unlimited, Inc., G.R. No.
158621, December 10, 2008, 573 SCRA 414, 421.
12 TSN, November 23, 2004, p. 11.
94

spondent, 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 respondentÊs
predecessor-in-interest. Said contract expressly stipulates:
In case of my/our failure to pay when due and payable, any

sum which I/We are obliged to pay under this note and/or any
other obligation which I/We or any of us may now or in the
future owe to the holder of this note or to any other party
whether as principal or guarantor x x x then the entire sum
outstanding under this note shall, without prior notice or
demand, immediately become due and payable. (Emphasis
and underscoring supplied)
A provision on waiver of notice or demand has been

recognized as legal and valid in Bank of the Philippine
Islands v. Court of Appeals,13 wherein We held:
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.14
Further, the Court even ruled in Navarro v. Escobido15

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 de-
_______________
13 523 Phil. 548; 490 SCRA 168 (2006).
14 Id., at p. 560; p. 177.
15 G.R. No. 153788, November 27, 2009, 606 SCRA 1, 20-21.
95
VOL. 697, JUNE 3, 2013 95

mand on the possessor of the property before an action for a

writ of replevin could be filed.
Also, petitionersÊ representation that they have not
received a demand letter is completely inconsequential as
the mere act of sending it would suffice. Again, We look
into the Promissory Note with Chattel Mortgage, which
provides:
All correspondence relative to this mortgage, including

demand letters, summonses, subpoenas, or notifications of
any judicial or extrajudicial action shall be sent to the
MORTGAGOR at the address indicated on this promissory
note with chattel mortgage or at the address that may
hereafter be given in writing by the MORTGAGOR to the
MORTGAGEE or his/its assignee. The mere act of sending
any correspondence by mail or by personal delivery to
the said address shall be valid and effective notice to
the mortgagor for all legal purposes and the fact that
any communication is not actually received by the
MORTGAGOR or that it has been returned unclaimed to the
MORTGAGEE or that no person was found at the address
given, or that the address is fictitious or cannot be located
shall not excuse or relieve the MORTGAGOR from the
effects of such notice.16 (Emphasis and underscoring
supplied)
The Court cannot yield to petitionersÊ denial in receiving

respondentÊs demand letter. To note, their postal address
evidently remained unchanged from the time they executed
the Promissory Note with Chattel Mortgage up to time the
case was filed against them. Thus, the presumption that „a

letter duly directed and mailed was received in the regular
course of the mail‰17 stands in the absence of satisfactory
proof to the contrary.
_______________
16 Records, p. 31.
17 RU L E S OF CO U R T , Rule 131, Sec. 3 (v).
96

Petitioners cannot find succour from Ting v. Court of

Appeals18 simply because it pertained to violation of Batas
Pambansa Blg. 22 or the Bouncing Checks Law. As a
higher quantum of proof · that is, proof beyond reasonable
doubt · is required in view of the criminal nature of the
case, We found insufficient the mere presentation of a copy
of the demand letter allegedly sent through registered mail
and its corresponding registry receipt as proof of receiving
the notice of dishonor.
Perusing over the records, what is clear is that
petitioners did not take advantage of all the opportunities
to present their evidence in the proceedings before the
courts below. They miserably failed to produce the original
cash deposit slips proving payment of the monthly
amortizations in question. Not even a photocopy of the
alleged proof of payment was appended to their Answer or
shown during the trial. Neither have they demonstrated
any written requests to respondent to furnish them with
official receipts or a statement of account. Worse,
petitioners were not able to make a formal offer of evidence
considering that they have not marked any documentary
evidence during the presentation of Deo AgnerÊs
testimony.19
Jurisprudence abounds that, in civil cases, one who
pleads payment has the burden of proving it; the burden
rests on the defendant to prove payment, rather than on
the plaintiff to prove non-payment.20 When the creditor is
in possession of the
_______________
18 398 Phil. 481; 344 SCRA 551 (2000).

19 Records, p. 145.
20 Royal Cargo Corporation v. DFS Sports Unlimited, Inc., supra note
11, at p. 422; Bank of the Philippine Islands v. Spouses Royeca, G.R. No.
176664, July 21, 2008, 559 SCRA 207, 216; Benguet Corporation v.
Department of Environment and Natural Resources-Mines Adjudication
Board, G.R. No. 163101, February 13, 2008, 545 SCRA 196, 213;
Citibank, N.A. v. Sabeniano, 535 Phil. 384, 419; 504 SCRA 378, 418
(2006); Keppel Bank Philippines, Inc. v. Adao, 510 Phil. 158, 166-167; 473
SCRA 372, 380-381 (2005); and Far East
97
VOL. 697, JUNE 3, 2013 97

document of credit, proof of non-payment is not needed for

it is presumed.21 RespondentÊs possession of the Promissory
Note with Chattel Mortgage strongly buttresses its claim
that the obligation has not been extinguished. As held in
Bank of the Philippine Islands v. Spouses Royeca:22
x x x The creditorÊs 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.23
Indeed, when the existence of a debt is fully established

by the evidence contained in the record, the burden of
proving that it has been extinguished by payment devolves
upon the debtor who offers such defense to the claim of the
creditor.24 The debtor has the burden of showing with legal
certainty that the obligation has been discharged by
payment.25
_______________
Bank and Trust Company v. Querimit, 424 Phil. 721, 730-731; 373
SCRA 665, 671 (2002).
21 Tai Tong Chuache & Co. v. Insurance Commission, 242 Phil. 104,
112; 158 SCRA 366, 373 (1988).
22 Supra note 20.

23 Bank of the Philippine Islands v. Spouses Royeca, id., at p. 219.
24 Id., at p. 216; Citibank, N.A. v. Sabeniano, supra note 20; and
Coronel v. Capati, 498 Phil. 248, 255; 459 SCRA 205, 213 (2005).
25 Royal Cargo Corporation v. DFS Sports Unlimited, Inc., supra note
11, at p. 422; Bank of the Philippine Islands v. Spouses Royeca, supra
note 20; Benguet Corporation v. Department of Environment and Natural
Resources-Mines Adjudication Board, supra note 20; Citibank, N.A. v.
Sabeniano, supra note 20; Coronel v. Capati, supra note 24, at p. 256; p.
213; and Far East Bank and Trust Company v. Querimit, supra note 20.
98

Lastly, there is no violation of Article 1484 of the Civil

Code and the CourtÊs decision in Elisco Tool Manufacturing
Corporation v. Court of Appeals.26
In Elisco, petitionerÊs complaint contained the following
prayer:
WHEREFORE, plaintiffs [pray] that judgment be rendered

as follows:
ON THE FIRST CAUSE OF ACTION
Ordering defendant Rolando Lantan to pay the plaintiff
the sum of P39,054.86 plus legal interest from the date of
demand until the whole obligation is fully paid;
ON THE SECOND CAUSE OF ACTION
To forthwith issue a Writ of Replevin ordering the seizure
of the motor vehicle more particularly described in paragraph
3 of the Complaint, from defendant Rolando Lantan and/or
defendants Rina Lantan, John Doe, Susan Doe and other
person or persons in whose possession the said motor vehicle
may be found, complete with accessories and equipment, and
direct deliver thereof to plaintiff in accordance with law, and
after due hearing to confirm said seizure and plaintiff Ês
possession over the same;
ON THE ALTERNATIVE CAUSE OF ACTION
In the event that manual delivery of the subject motor
vehicle cannot be effected for any reason, to render judgment
in favor of plaintiff and against defendant Rolando Lantan
ordering the latter to pay the sum of SIXTY THOUSAND
PESOS (P60,000.00) which is the estimated actual value of
the above-described motor vehicle, plus the accrued monthly

rentals thereof with in-
_______________
26 Supra note 10.
99
VOL. 697, JUNE 3, 2013 99

terests at the rate of fourteen percent (14%) per annum until

fully paid;
PRAYER COMMON TO ALL CAUSES OF ACTION
1. Ordering the defendant Rolando Lantan to pay the
plaintiff an amount equivalent to twenty-five percent (25%) of
his outstanding obligation, for and as attorneyÊs fees;
2. Ordering defendants to pay the cost or expenses of
collection, repossession, bonding fees and other incidental
expenses to be proved during the trial; and
3. Ordering defendants to pay the costs of suit.
Plaintiff also prays for such further reliefs as this
Honorable Court may deem just and equitable under the
premises.27
The Court therein ruled:
The remedies provided for in Art. 1484 are alternative, not

cumulative. The exercise of one bars the exercise of the
others. This limitation applies to contracts purporting to be
leases of personal property with option to buy by virtue of
Art. 1485. The condition that the lessor has deprived the
lessee of possession or enjoyment of the thing for the purpose
of applying Art. 1485 was fulfilled in this case by the filing by
petitioner of the complaint for replevin to recover possession
of movable property. By virtue of the writ of seizure issued by
the trial court, the deputy sheriff seized the vehicle on August
6, 1986 and thereby deprived private respondents of its use.
The car was not returned to private respondent until April
16, 1989, after two (2) years and eight (8) months, upon
issuance by the Court of Appeals of a writ of execution.
_______________
27 Elisco Tool Manufacturing Corporation v. Court of Appeals, id., at pp.
735-736.
100

Petitioner prayed that private respondents be made to pay

the sum of P39,054.86, the amount that they were supposed
to pay as of May 1986, plus interest at the legal rate. At the
same time, it prayed for the issuance of a writ of replevin or
the delivery to it of the motor vehicle „complete with
accessories and equipment.‰ In the event the car could not be
delivered to petitioner, it was prayed that private respondent
Rolando Lantan be made to pay petitioner the amount of
P60,000.00, the „estimated actual value‰ of the car, „plus
accrued monthly rentals thereof with interests at the rate of
fourteen percent (14%) per annum until fully paid.‰ This
prayer of course cannot be granted, even assuming that
private respondents have defaulted in the payment of their
obligation. This led the trial court to say that petitioner
wanted to eat its cake and have it too.28
In contrast, respondent in this case prayed:
(a) Before trial, and upon filing and approval of the bond,

to [forthwith] issue a Writ of Replevin ordering the seizure of
the motor vehicle above-described, complete with all its
accessories and equipments, together with the Registration
Certificate thereof, and direct the delivery thereof to plaintiff
in accordance with law and after due hearing, to confirm the
said seizure;
(b) Or, in the event that manual delivery of the said motor
vehicle cannot be effected to render judgment in favor of
plaintiff and against defendant(s) ordering them to pay to
plaintiff, jointly and severally, the sum of P576,664.04 plus
interest and/or late payment charges thereon at the rate of
72% per annum from August 20, 2002 until fully paid;
(c) In either case, to order defendant(s) to pay jointly and
severally:
(1) the sum of P297,857.54 as attorneyÊs fees,
liquidated damages, bonding fees and other
_______________
28 Id., at pp. 743-744.
101
VOL. 697, JUNE 3, 2013 101

expenses incurred in the seizure of the said motor

vehicle; and
(2) the costs of suit.
Plaintiff further prays for such other relief as this
Honorable Court may deem just and equitable in the
premises.29
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 „[e]xact[ing]
fulfillment of the obligation.‰ Certainly, there is no double
recovery or unjust enrichment30 to speak of.
All the foregoing notwithstanding, We are of the opinion
that the interest of 6% per month should be equitably
reduced
_______________
29 Records, pp. 24-25.
30 In Cabrera v. Ameco Contractors Rental, Inc. (G.R. No. 201560,
June 20, 2012 Second Division Minute Resolution), We held:
The principle of unjust enrichment is provided under Article 22 of the
Civil Code which provides:
Article 22. Every person who through an act of performance by
another, or any other means, acquires or comes into possession of
something at the expense of the latter without just or legal ground, shall
return the same to him.
There is unjust enrichment „when a person unjustly retains a benefit
to the loss of another, or when a person retains money or property of
another against the fundamental principles of justice, equity and good
conscience.‰ The principle of unjust enrichment requires two conditions:
(1) that a person is benefited without a valid basis or justification, and
(2) that such benefit is derived at the expense of another.
102
to one percent (1%) per month or twelve percent (12%) per

annum, to be reckoned from May 16, 2002 until full
payment and with the remaining outstanding balance of
their car loan as of May 15, 2002 as the base amount.
Settled is the principle which this Court has affirmed in
a number of cases that stipulated interest rates of three
percent (3%) per month and higher are excessive,
iniquitous, unconscionable, and exorbitant.31 While Central
Bank Circular No. 905-82, which took effect on January 1,
1983, effectively removed the ceiling on interest rates for
both secured and unsecured loans, regardless of maturity,
nothing in the said circular could possibly be read as
granting carte blanche authority to lenders to raise interest
rates to levels which would either enslave their borrowers
or lead to a hemorrhaging of their assets.32 Since the
stipulation on the interest rate is void for being contrary to
morals, if not against the law, it is as if there was no
express contract on said interest rate; thus, the interest
rate may be reduced as reason and equity demand.33
WHEREFORE, the petition is DENIED and the Court
AFFIRMS WITH MODIFICATION the April 30, 2007
Decision and May 19, 2008 Resolution of the Court of
Appeals in CA-G.R. CV No. 86021. Petitioners spouses Deo
Agner and Maricon Agner are ORDERED to pay, jointly
and severally, respondent BPI Family Savings Bank, Inc.
(1) the remaining outstanding balance of their auto loan
obligation as of May 15, 2002 with interest at one percent
(1%) per month from May 16, 2002 until fully paid; and (2)
costs of suit.
_______________
31 Arthur F. Menchavez v. Marlyn M. Bermudez, G.R. No. 185368,
October 11, 2012, 684 SCRA 168.
32 Macalinao v. Bank of the Philippine Islands, G.R. No. 175490,
September 17, 2009, 600 SCRA 67, 77, citing Chua v. Timan, G.R. No.
170452, August 13, 2008, 562 SCRA 146, 149-150.
33 Arthur F. Menchavez v. Marlyn M. Bermudez, G.R. No. 185368,
October 11, 2012, 684 SCRA 168, citing Macalinao v. Bank of the
Philippine Islands, supra, at p. 77, and Chua v. Timan, supra, at p. 150.
103
VOL. 697, JUNE 3, 2013 103

SO ORDERED.
Velasco, Jr. (Chairperson), Abad, Mendoza and Leonen,

JJ., concur.
Petition denied, judgment and resolution affirmed with

modification.
Notes.·Replevin is both a form of principal remedy and

of provisional relief; The action is primarily possessory in
nature and generally determines nothing more than the
right of possession. (Rivera vs. Vargas, 588 SCRA 529
[2009])
Upon the dismissal of the replevin case for failure to
prosecute, the writ of seizure, which is merely ancillary in
nature, became functus officio and should have been lifted.
(Advent Capital and Finance Corporation vs. Young, 655
SCRA 118 [2011])
··o0o··
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SUPREME COURT REPORTS ANNOTATED VOLUME 697 1/23/18, 10:12 PM

G.R. No. 182963. June 3, 2013.*

SPOUSES DEO AGNER and MARICON AGNER,

Remedial Law; Civil Procedure; Appeals; An issue is factual

90 SUPREME COURT REPORTS ANNOTATED