G.R. No. 154355
May 20, 2004
Case Principle
A purchaser in a foreclosure sale may apply for the writ of possession within the redemption period.
Facts
Petitioner spouses obtained a loan from Far East Bank and Trust Company. In order to secure the loan, they executed two real estate mortgages covering five commercial properties. However, the petitioners failed to settle their obligations. Hence, the mortgaged was foreclosed and an auction sale followed thereafter.
Lenjul Realty Corporation emerged as the highest bidder, who was subsequently issued a certificate of sale which the latter registered. Thus, Lenjul Realty obtained a certificate of title over the foreclosed properties. Meanwhile, Lenjul Realty filed a Petition for the Issuance of a Writ of Possession, which sought an ex parte issuance of a writ of possession over the foreclosed properties. During the pendency of such petition, the petitioners filed an annulment of an action for Annulment of Extra-Judicial Foreclosure and/or Nullification of Sale and the Certificates of Title. Thereafter, Judge Caballes issued an Order directing the consolidation of the Petition for Writ of Possession and the civil case for annulment of foreclosure. However, Judge Rivera issued an order denying such consolidation.
Subsequently, a Writ of Possession was issued directing the sheriff to place Lenjul Realty Corporation in physical possession of the foreclosed properties. Hence, the petitioners filed a Motion for Prohibition before the Court of Appeals who denied the motion. The Court of Appeals held that the issuance of a writ of possession was a ministerial function that was done upon the filing of the proper motion and the approval of the corresponding bond. Hence, this petition.
Issue
W/N the purchaser in a foreclosure sale may apply for the writ of possession within the redemption period?
Held
Yes. Section 7 of Act 3135 the purchaser in a foreclosure sale may apply for a writ of possession during the redemption period by filing for that purpose an ex parte motion under oath, in the corresponding registration or cadastral proceeding in the case of a property with torrens title. Upon the filing of such motion and the approval of the corresponding bond, the court is expressly directed to issue the writ.
This Court has consistently held that the duty of the trial court to grant a writ of possession is ministerial. Such writ issues as a matter of course upon the filing of the proper motion and the approval of the corresponding bond. No discretion is left to the trial court. Any question regarding the regularity and validity of the sale, as well as the consequent cancellation of the writ, is to be determined in a subsequent proceeding as outlined in Section 8 of Act 3135. Such question cannot be raised to oppose the issuance of the writ, since the proceeding is ex parte. The recourse is available even before the expiration of the redemption period provided by law and the Rules of Court.
The purchaser, who has a right to possession that extends after the expiration of the redemption period, becomes the absolute owner of the property when no redemption is made. Hence, at any time following the consolidation of ownership and the issuance of a new transfer certificate of title in the name of the purchaser, he or she is even more entitled to possession of the property. In such a case, the bond required under Section 7 of Act 3135 is no longer necessary, since possession becomes an absolute right of the purchaser as the confirmed owner.
Therefore, the Court of Appeals correctly sustained the writ of possession.