Short answer. Yes. A mortgage on the premises is one of the four debts the exemption does not defeat, and it makes no difference whether the mortgage was constituted before or after the family home was. The protection was never a shield against the loan that bought the house.
What the law says
The family home shall be exempt from execution, forced sale or attachment except: (1) For nonpayment of taxes; (2) For debts incurred prior to the constitution of the family home; (3) For debts secured by mortgages on the premises before or after such constitution; and (4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building.
Family Code, Article 155 — Debts That Defeat the Exemption. Read the full provision →
The mortgage exception, in the article's own words
Article 155 exempts the family home from execution, forced sale or attachment except in four cases, and the third is for debts secured by mortgages on the premises before or after such constitution. The phrase before or after closes the argument most borrowers reach for. It does not help that the family was already living in the house when the mortgage was signed, or that the house became a family home the moment they moved in. A mortgage voluntarily given over the premises is enforceable against them. The exception is about the security, not about who the lender is.
The other three debts that get through
The exemption also yields for nonpayment of taxes, for debts incurred prior to the constitution of the family home, and for debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. There is a logic running through the list. Taxes are owed on the property itself; earlier creditors lent when no exemption existed and cannot be worse off for a protection created afterwards; and the people who built the house are not to be defeated by the very structure they put up.
What the exemption is actually for
Read as a whole, the article protects the family home from creditors the family never gave it to — the credit card balance, the unpaid supplier, the judgment in a case about something else. Those creditors cannot take the house. What it does not do is release anyone from an obligation they secured with the house on purpose. So a housing loan, a re-mortgage taken to fund a business, and a loan from a lender who took the title as security all fall outside the protection, because in each the family put the house up itself.
Where the real questions are
If foreclosure is threatened, the exemption is rarely the fight worth having. The questions that matter are whether the mortgage was validly constituted — whether both spouses consented in writing where consent was required, and whether the signature is genuine — and whether the lender has complied with the requirements of the foreclosure it has chosen. Get the loan agreement, the mortgage deed and its annotation on the title, the statement of account, and every notice received, and take them for advice while there is still time to act on them. A defect in the mortgage or in the notice does more for a family than the exemption ever will.
Cases citing this provision
These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.
- Mary Josephine Gomez et al., vs. Roel Sta. Ines, et al, G.R. No. 132537, October 14, 2005 — read the decision on LawPhil →
- Urduja Ortiz-Aquino vs. Letecia Ortillo, Lisette Ortillo, And Sheriff Of The Office Of The Provincial Sheriff Of Lingayen, Pangasinan, G.R. No. 257235, November 8, 2023 — read the decision on LawPhil →
- Cesar D. Taruc vs. Angelina D. Maximo, Maricel Buenaventura, George Jordan, and Jennifer Burgos, G.R. No. 227728, September 28, 2022 — read the decision on LawPhil →
- Jose E. Honrado vs. Court of Appeals, et al, G.R. No. 166333, November 25, 2005 — read the decision on LawPhil →