2. Special Power of Attorney

NEED FOR SPECIAL POWER OF ATTORNEY

Accordingly, Section 1 of Act No. 3135, which prescribes for the procedure for the extra-judicial foreclosure of real properties subject to real estate mortgage, in relation to Circular No. 7-2002 and SC A.M. No. 99-10-05-0 requires that the petition for extra-judicial foreclosure be supported by evidence that petitioners hold a special power or authority to foreclose. (Welbit Construction Corp. v. Heirs of De Castro, G.R. No. 210286, 2018)

In judicial foreclosure unlike extra-judicial foreclosure, mortgagee need not be given a special power of attorney in the mortgage contract to foreclose the mortgaged property in case of default.

Effect of Lack of Verification

A pleading which is required to be verified but lacks the proper verification shall be treated as an unsigned pleading which produces no legal effect and is dismissible.

However, it has been held that the requirement regarding verification of a pleading is formal, not jurisdictional—non-compliance with which does not necessarily render the pleading fatally defective. The court may order the correction of the pleading if verification is lacking or act on the pleading although it is not verified, if the attending circumstances are such that the strict compliance with the rules may be dispensed with in order that the ends of justice may thereby be served. (Republic v. Coalbrine International Philippines, Inc., G.R. No. 161838, 2010)

A pleading is verified by an affidavit of an affiant duly authorized to sign said verification. The authorization of the affiant to act on behalf of a party, whether in the form of a secretary’s certificate or a special power of attorney, should be attached to the pleading, and shall allege the following attestations:

• The allegations in the pleading are true and correct based on his or her personal knowledge, or based on authentic documents;
• The pleading is not filed to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
• The factual allegations therein have evidentiary support or, if specifically so identified, will likewise have evidentiary support after a reasonable opportunity for discovery. (Rule 7, Sec. 4)