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

_______________
 * THIRD DIVISION.

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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. Respondent’s
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 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.
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-

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Agner vs. BPI Family Savings Bank, Inc.

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.
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92 SUPREME COURT REPORTS ANNOTATED

Agner vs. BPI Family Savings Bank, Inc.

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 court’s 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
AMRO’s 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) respondent’s 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.

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Agner vs. BPI Family Savings Bank, Inc.

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 argument’s 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 vendee’s failure to pay cover two or
more installments;
(3)   Foreclose the chattel mortgage on the thing sold, if one has been
constituted, should the vendee’s 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.

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94 SUPREME COURT REPORTS ANNOTATED

Agner vs. BPI Family Savings Bank, Inc.
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 respondent’s
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.

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Agner vs. BPI Family Savings Bank, Inc.

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

writ of replevin could be filed.
Also, petitioners’ 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 petitioners’ denial in receiving

respondent’s 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 Rules of Court, Rule 131, Sec. 3 (v).

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96 SUPREME COURT REPORTS ANNOTATED

Agner vs. BPI Family Savings Bank, Inc.

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 Agner’s
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

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Agner vs. BPI Family Savings Bank, Inc.

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

it is presumed.21 Respondent’s 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 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.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

98 SUPREME COURT REPORTS ANNOTATED

Agner vs. BPI Family Savings Bank, Inc.

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

Code and the Court’s decision in Elisco Tool Manufacturing
Corporation v. Court of Appeals.26
In Elisco, petitioner’s 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’s 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-

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26 Supra note 10.

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Agner vs. BPI Family Savings Bank, Inc.

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 attorney’s 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.

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Agner vs. BPI Family Savings Bank, Inc.

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 attorney’s fees,
liquidated damages, bonding fees and other

_______________
28 Id., at pp. 743-744.

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Agner vs. BPI Family Savings Bank, Inc.

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.

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102 SUPREME COURT REPORTS ANNOTATED

Agner vs. BPI Family Savings Bank, Inc.

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.

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Agner vs. BPI Family Savings Bank, Inc.

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])

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