Republic of the
Supreme Court
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ELIGIO P.
MALLARI, |
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G.R. No. 157660 |
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Petitioner, |
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Present: |
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YNARES-SANTIAGO, J., |
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Chairperson, |
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AUSTRIA-MARTINEZ, |
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CHICO-NAZARIO, |
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NACHURA, and |
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REYES, JJ. |
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BANCO FILIPINO
SAVINGS |
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& MORTGAGE
BANK, |
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Promulgated: |
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Respondent. |
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August 29, 2008 |
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D E C I S I O N
AUSTRIA-MARTINEZ, J.:
This resolves the Petition for Review
on Certiorari under Rule 45 of the Rules of Court, seeking the reversal
of the Court of Appeals (CA) Decision[1]
dated
The
antecedent facts are as follows.
Petitioner
obtained a loan from Banco Filipino Savings and
Mortgage Bank (respondent) and as security therefor,
he executed a Deed of Mortgage over a parcel of land located in Pampanga. Due to his
failure to pay the loan, respondent extra-judicially foreclosed the mortgaged
property. Respondent was the highest
bidder at the public auction sale, and the Certificate of Sale issued in its
favor was annotated on the title of the subject property on
Thereafter,
on
Aggrieved,
petitioner filed a petition for certiorari with the CA. On March 14, 2003, the CA promulgated the
herein assailed Decision dismissing the petition for lack of merit, ruling that
under the law, the purchaser in the foreclosure sale should be placed in
possession of the property without delay, and that it was the ministerial duty
of the courts to uphold the mortgagee's right to possession even during the
redemption period.[2] The CA added that an appeal, which was
available to petitioner, was the appropriate remedy, and therefore, he could
not avail himself of the writ of certiorari.
Petitioner then filed the present petition for
review on certiorari alleging that:
1.
THE HONORABLE COURT OF APPEALS
COMMITTED A REVERSIBLE ERROR IN UPHOLDING THE GRANT OF WRIT OF POSSESSION IN
FAVOR OF RESPONDENT BANCO FILIPINO AGAINST THE SPOUSES ELIGIO AND MARCELINA
MALLARI ON THE PROPERTY SUBJECT MATTER OF THIS CASE.
2.
THE HONORABLE COURT OF APPEALS
COMMITTED A REVERSIBLE ERROR IN UPHOLDING THE DENIAL ORDER OF THE TRIAL COURT
TO RECONSIDER THE ORDER DATED
3. THE HONORABLE COURT OF APPEALS COMMITTED AN ERROR WHEN IT RULED THAT
CERTIORARI WILL NOT LIE AS APPEAL IS THE APPROPRIATE REMEDY WHICH IS STILL
AVAILABLE IN THE CASE.[3]
The petition fails for lack
of merit. The CA
committed no error.
First to be resolved is the
issue of whether the remedy of certiorari may be
availed of by petitioner in assailing the RTC Orders granting the issuance
of a writ of possession. The
well-trenched rule provided for in Section 1, Rule 65 of the Rules of Court and
elucidated in Metropolitan Bank and Trust Co., Inc. v. National
Wages and Productivity Commission,[4] is that:
Certiorari as a special civil action is available only if the following essential
requisites concur: (1) it must be directed against the tribunal, board or any
officer exercising judicial or quasi-judicial functions; (2) the tribunal,
board or officer must have acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any plain, speedy and
adequate remedy in the ordinary course of law.
x x x x
x
x x A remedy is considered plain,
speedy and adequate if it will promptly relieve the petitioner from the
injurious effects of the judgment or rule, order or resolution of the lower
court or agency.[5] (Emphasis supplied)
Indeed, the Court in some
instances has allowed a petition for certiorari to
prosper notwithstanding the availability of an appeal, such as, (a) when
public welfare and the advancement of public policy dictate it; (b)
when the broader interest of justice so requires; (c)
when the writs issued are null; and (d) when the questioned order amounts to an
oppressive exercise of judicial authority.”[6]
However,
in the present case, the Court finds no cogent reason to sustain
petitioner’s claim that the CA erred when it ruled that certiorari would not lie, as
appeal is the appropriate remedy. There is
no issue here that involves public welfare or policy. The broader interest of justice would, in
fact, be better served by following the procedural steps set forth in Section
8, Act No. 3135, as amended, to wit:
SEC. 8. The debtor may, in the proceedings in which
possession was requested, but not later than thirty days after the purchaser
was given possession, petition that the sale be set aside and the writ of
possession cancelled, specifying the damages suffered by him, because the
mortgage was not violated or the sale was not made in accordance with the
provisions hereof, and the court shall take cognizance of this petition in
accordance with the summary procedure provided for in section one hundred and
twelve of Act
Numbered Four hundred and ninety-six; and if it finds the complaint of the
debtor justified, it shall dispose in his favor of all or part of the bond
furnished by the person who obtained possession. Either of the parties may
appeal from the order of the judge in accordance with section fourteen of Act Numbered
Four hundred and ninety-six; but the order of possession shall continue in
effect during the pendency of the appeal. (Emphasis supplied)
The
above procedure affords both parties the most expeditious way to resolve any
conflict regarding the writ of possession alone.
Jose v. Zulueta,[7] Matute v. Court of Appeals,[8] Romero,
Sr. v. Court of Appeals[9] and Belfront Surety and Insurance Co. v. People of the
Philippines[10] cited by
petitioner are not applicable to the present case. Those cases involved writs of possession
issued in the course of the execution of judgment, totally unlike this case in which the writ
of possession was issued by reason of an extra-judicial foreclosure.
In
Green Asia Construction & Development Corp. v. Court of Appeals,[11] the Court
categorically ruled that under Section 8, Act No. 3135, the remedy of a party
from the trial court's order granting the issuance of a writ of possession is
to file a petition to set aside the sale and cancel the writ of possession, and
the aggrieved party may then appeal from the order denying or granting said
petition. This is the plain, speedy and
adequate remedy envisioned in Rule 65 of the Rules of Court, and since
petitioner could have availed himself of such procedure, he is not
entitled to the remedy of certiorari. On this point alone, the CA acted properly in
dismissing the subject petition for certiorari.
However, just to put petitioner's mind
at ease that the dismissal of his petition for certiorari was not
grounded solely on technicalities, the Court will discuss the issue of the
propriety of the issuance of the writ of possession by the trial court.
The
writ of possession was issued in accordance with law and jurisprudence. The writ of
possession granted by the RTC was not a nullity; neither
was its issuance an oppressive exercise of judicial authority.
In Espiridion v. Court of Appeals,[12] a case
that is closely akin to the present petition, the Court expounded thus:
x x x The issuance of a writ of possession to a
purchaser in a public auction is a ministerial act. After the consolidation of
title in the buyer’s name for failure of the mortgagor to redeem the property,
the writ of possession becomes a matter of right. Its issuance to a purchaser
in an extrajudicial foreclosure sale is merely a ministerial function. The trial court has no discretion on this
matter. Hence, any talk of
discretion in connection with such issuance is misplaced.
A
clear line demarcates a discretionary act from a ministerial one. Thus:
The distinction between a ministerial and
discretionary act is well delineated. A purely ministerial
act or duty is one which an officer or tribunal performs in a given state of
facts, in a prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of his own judgment upon the
propriety or impropriety of the act done. If the law imposes a duty upon a
public officer and gives him the right to decide how or when the duty shall be
performed, such duty is discretionary and not ministerial.
The duty is ministerial only when the discharge of the same requires neither
the exercise of official discretion or judgment.
Clearly, the use of discretion and the
performance of a ministerial act are mutually exclusive.
Where
the court acts on a matter that is within its jurisdiction, grave abuse of
discretion must be shown to nullify the act. In this case, since the issuance of the writ of possession did not
involve an exercise of discretion, no abuse of discretion could have been
committed by the trial court.
Thus, the instant petition for certiorari has no
leg to stand on.
The issue of nullity of the
extrajudicial foreclosure sale was of no moment. It could not bar the issuance
of the writ of possession. As a rule, any question regarding the validity of the
mortgage or its foreclosure is not a legal ground for refusing the issuance of
a writ of execution/ writ of possession.
The fact that no bond was posted by SBDB was also of no
consequence. Since ownership of the property had already been consolidated in
the name of the bank, there was nothing legally questionable in the issuance of
the writ of possession even if no bond was posted. The posting of a bond as a
condition for the issuance of the writ of possession becomes necessary only if
it is applied for within one year from the registration of the sale with the
register of deeds, i.e., during the redemption period
inasmuch as ownership has not yet vested on the creditor-mortgagee. After the one-year period,
however, the mortgagor loses all interest over it. 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. Thus, the posting of a bond is no longer
needed.[13] (Emphasis supplied)
Again, in Saguan v.
Philippine Bank of Communications,[14] the
Court reiterated that:
x x x Consequently, the purchaser, who has a right to possession
after the expiration of the redemption period, becomes the absolute owner of
the property when no redemption is made.
In this regard, the bond is no longer needed. The purchaser can demand possession at any time following the
consolidation of ownership in his name and the issuance to him of a new TCT.
After consolidation of title in the purchaser’s name for failure of the
mortgagor to redeem the property, the purchaser’s right to possession ripens
into the absolute right of a confirmed owner. At that point, the issuance of a
writ of possession, upon proper application and proof of title, to a purchaser
in an extrajudicial foreclosure sale becomes merely a ministerial
function. Effectively, the court cannot
exercise its discretion.
Therefore,
the issuance by the RTC of a writ of possession in favor of the respondent in
this case is proper. We
have consistently held that the duty of the trial court to grant a writ of
possession in such instances is ministerial, and the court may not exercise
discretion or judgment. x x x
We
emphasize that the proceeding in a petition for a writ of possession is ex-parte
and summary in nature. It is a judicial proceeding brought for the benefit of
one party only and without need of notice to any person claiming an adverse
interest. It is a proceeding wherein relief is granted even without giving the
person against whom the relief is sought an opportunity to be heard. By its very nature, an ex-parte petition
for issuance of a writ of possession is a non-litigious proceeding authorized
under Act No. 3135, as amended.
Be
that as it may, the debtor or mortgagor is not without recourse. x x x
x x x x
x
x x a party may file a
petition to set aside the foreclosure sale and to cancel the writ of possession
in the same proceedings where the writ of possession was requested.[15]
From the foregoing, it is quite clear
that petitioner's contention -- that the trial court acted with
grave abuse of discretion in issuing the writ of possession despite the pendency between herein parties of an action for
declaration of nullity of the extra-judicial foreclosure -- does not
hold water.
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE
CONCUR:
CONSUELO YNARES-SANTIAGO
Associate
Justice
Chairperson
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MINITA V. CHICO-NAZARIO Associate Justice |
ANTONIO EDUARDO B. NACHURA Associate Justice |
RUBEN T. REYES
Associate Justice
ATTESTATION
I attest that the conclusions in
the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairperson’s Attestation, it is hereby
certified that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court’s Division.
REYNATO S. PUNO
Chief Justice
[1] Penned by Associate Justice Juan
Q. Enriquez, Jr., with Associate Justices Bernardo P. Abesamis
and Edgardo F. Sundiam,
concurring, rollo, p.
26.
[2] CA Decision, rollo,
p. 29
[3] Rollo,
pp. 17-18.
[4] G.R. No. 144322,
[5]
[6] Leyte IV Electric Cooperative, Inc., v. LEYECO IV
Employees Union – ALU, G.R.
No. 157775, October 19, 2007, 537 SCRA 154, 166.
[7] No. L-16598,
[8] No. L-26751,
[9] No. L-29659,
[10] No. L-47309,
[11] G.R. No. 163735,
[12] G.R.
No. 146933,
[13] Espiridion v. Court of Appeals, supra note 12, at 276-278.
[14] G.R. No. 159882,
[15] Saguan v. Philippine Bank of Communications, supra note 14, at 396-397.