I. Title: Korea Intl Bank v.

nk v. Filkor Korea's action being one for foreclosure of real estate mortgage, it was incumbent upon
G.R. No. 138292 April 10, 2002 the trial court to order that the mortgaged property be foreclosed and sold at public auction
in the event that Filkor fails to pay its outstanding obligations.
II. Doctrine
Allegations indicate that Korea's action was one for foreclosure of real estate mortgage. Petition granted.
What determines the nature of an action, as well as which court or body has jurisdiction
over it, are the allegations of the complaint and the character of the relief sought. There is
no indication whatsoever that Korea had waived its rights under the real estate mortgage
executed in its favor. Thus, the trial court erred in concluding that Korea had abandoned
its mortgage lien on Filkor's property, and that what it had filed was an action for
collection of a sum of money.

III. Facts
Filkor borrowed US140k from Korea, only 40k was paid. Filkor then executed 9 trust
receipts in favor of Korea, however Filkor again failed to turn over the proceeds from
the sale of goods or the goods themselves required by the trust receipts in case Filkor
fails to sell them. Filkor negotiated to Korea the proceeds of 17 letters of credit,
however the same was dishonored due to discrepancies. Filkor then executed REM
over the improvements belonging to it which it constructed in the land they are
leasing, Joe and Sang executed Continuing suretyships binding themselves jointly
and severally with Filkor, however Filkor again failed to pay.
Korea then filed a complaint for collection of sum of money v. Filkor praying that it
be ordered to pay under its 27 causes of action and that the property mortgaged be
foreclosed ad sold at a public auction. Korea moved for summary judgment.
RTC: Only ground of Filkor in denying is that the documents were mere
photocopies, hence for failure to specifically deny, they are deemed to have admitted
the genuineness and due execution of docs attached.
MR by Korea, motion for partial consideration that prayer for foreclosure and sale at
P.A. be granted Denied by RTC, in opting to file for collection, it then abandoned
its mortgaged lien on the prop under REM. Citing Danao v. CA, mortgage cr. may
elect to waive security and bring ordinary action to recover indebtness with right to
execute dr. properties including one under REM. If he fails in the remedy elected, he
cannot purse remedy waived.
Hence, this petition by Korea.

IV. Issues
(1) Whether Korea abandoned the REM in its favor. (NO)

V. Held
(1) The present complaint alleges that to secure payment under the 27 causes of action,
Filkor executed a REM on the improvements in the land they are leasing. The allegation
satisfies Sec 1 Rule 68 of Rules of Civil Procedure on foreclosure of real estate mortgage.

The date and due execution are alleged; properties mortgaged are stated and described;
names and residences of the Filkor, as mortgagor and Korea, as mortgagee, are alleged;
and that the very prayer is the foreclosure of the REM in case Filkor fails to pay 90days
from entry of judgment.

Allegations indicate that petitioner's action was one for foreclosure of real estate mortgage.
What determines the nature of an action, as well as which court or body has jurisdiction
over it, are the allegations of the complaint and the character of the relief sought. There is
no indication whatsoever that petitioner had waived its rights under the real estate
mortgage executed in its favor. Thus, the trial court erred in concluding that petitioner had
abandoned its mortgage lien on Filkor's property, and that what it had filed was an action
for collection of a sum of money.