Republic of the Philippines
Supreme Court
Manila
METROPOLITAN BANK & TRUST COMPANY,
Petitioner, - versus - HON. SALVADOR ABAD SANTOS, Presiding Judge, RTC, Br.
65, Makati City and MANFRED JACOB DE KONING, Respondents. |
G.R. No. 157867
Present:
CARPIO, J.,
Chairperson,
LEONARDO-DE CASTRO, BRION, DEL CASTILLO, and ABAD, JJ. Promulgated: December 15, 2009 |
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D E C
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BRION, J.: |
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This
petition for review on certiorari,[1]
seeks to reverse and set aside the decision dated November 21, 2002 and
subsequent ruling on motion for reconsideration of the Court of Appeals (CA)
in CA-G.R. SP No. 62325.[2] The CA
decision affirmed the order of the Regional Trial Court (RTC) of Makati City, Branch 65,[3]
dismissing the petition filed by Metropolitan Bank & Trust Company (Metrobank) for the issuance of a writ of
possession of a condominium unit it had previously foreclosed. This dismissal was based on the finding that
the petition contained a false certification against forum shopping.
FACTUAL ANTECEDENTS
Respondent
Manfred Jacob De Koning (De Koning)
obtained a loan from Metrobank in the principal amount of Two Million, Nineteen
Thousand Pesos (P2,019,000.00), evidenced by promissory note No.
TLS/97-039/382599 dated July 24, 1997. To secure the payment of this loan, De
Koning executed a real estate mortgage (REM)
in favor of Metrobank dated July 22, 1996 over a condominium unit and all its
improvements. The unit is located at
Unit 1703 Cityland 10 Tower 1, H.V. Dela Costa Street, Makati City, and is
covered by Condominium Certificate of Title No. 10681.
When
De Koning failed to pay his loan despite demand, Metrobank instituted
extrajudicial foreclosure proceedings against the REM. Metrobank was the highest bidder at the
public auction of the condominium unit held on November 24, 1998 and a Certificate of Sale was issued in the bank's favor. Metrobank duly registered
this Certificate of Sale with the Registry of Deeds for Makati City on January
18, 2000.
The
redemption period lapsed without De Koning redeeming the property. Thus,
Metrobank demanded that he turn over
possession of the condominium unit. When De Koning refused, Metrobank
filed on July 28, 2000 with the RTC Makati, Branch 65, an ex parte petition for a writ of
possession over the foreclosed property, pursuant to Act No. 3135, as amended.
On August 1, 2000, the lower court
issued an order setting the ex parte
hearing of Metrobank’s petition and directing that a copy of the order be given
to De Koning to inform him of the existence of the proceedings.
During
the scheduled ex parte hearing on
August 18, 2000, De Koning’s counsel appeared and manifested that he filed a
motion to dismiss on the ground that Metrobank’s petition violated Section 5,
Rule 7 of the Rules of Court (Rules)[4]
which requires the attachment of a certification against forum shopping to a
complaint or other initiatory pleading. According
to De Koning, Metrobank’s petition
for the issuance of a writ of possession involved the same parties, the same
issues and the same subject matter as the case he had filed on October 30, 1998
with the RTC of Makati,[5] to
question Metrobank’s right to foreclose the mortgage. De Koning also had a
pending petition for certiorari with
the CA,[6]
which arose from the RTC case he filed.
When Metrobank failed to disclose the existence of these two pending
cases in the certification attached to its petition, it failed to comply with
the mandatory requirements of the Rules so that
its petition should be dismissed.
The RTC agreed with De Koning and
dismissed Metrobank’s petition in its September 18, 2000 order on the ground De
Koning cited, i.e.,for having a false certification of non-forum shopping. The lower court denied Metrobank’s motion for
reconsideration. Metrobank thus elevated
the matter to the CA on a petition for certiorari on January 5, 2001.
The CA affirmed the dismissal of Metrobank’s
petition. It explained that Section 5,
Rule 7 of the Rules is not limited to actions, but covers any “initiatory
pleading” that asserts a claim for relief. Since Metrobank’s petition for
writ of possession is an initiatory pleading, it must perforce be covered by this rule. Thus, Metrobank’s
failure to disclose in the verification
and certification the existence of the two cases filed by De Koning, involving
the issue of Metrobank’s right to foreclose on the property, rendered the petition dismissible.
The CA denied Metrobank’s subsequent
motion for reconsideration. Hence, this petition for review on certiorari,
raising the following issues:
ISSUES
I.
THE COURT OF APPEALS AND THE LOWER COURT, CONTRARY TO THE
APPLICABLE DECISIONS OF THIS HONORABLE COURT, RULED THAT THE EX PARTE PETITION
FOR THE ISSUANCE OF A WRIT OF POSSESSION IS AN INITIATORY PLEADING ASSERTING A
CLAIM.
II.
THE COURT OF APPEALS, IN UPHOLDING THE RULING OF THE
LOWER COURT, DELIBERATELY IGNORED THE FACT THAT THE PETITION FOR THE ISSUANCE
OF A WRIT OF POSSESSION IS EX PARTE IN NATURE.
III.
THE COURT OF APPEALS COMMITTED A MISAPPREHENSION OF
FACTS.
Metrobank claims that an ex parte petition for the issuance of a
writ of possession is not an initiatory pleading asserting a claim. Rather, it
is a mere incident in the transfer of title over the real property which was
acquired by Metrobank through an extrajudicial foreclosure sale, in accordance
with Section 7 of Act No. 3135, as amended. Thus, the petition is not covered
by Section 5, Rule 7 of the Rules and a certification against forum shopping is
not required.
Metrobank further argues that
considering the ex parte nature of
the proceedings, De Koning was not even entitled to be notified of the
resulting proceedings, and the lower court and the CA should have disregarded
De Koning’s motion to dismiss.
Lastly, Metrobank posits that the CA
misapprehended the facts of the case when it affirmed the lower court’s finding
that Metrobank’s petition and the two cases filed by De Koning involved the
same parties. There could be no identity of parties in these cases for the
simple reason that, unlike the two cases filed by De Koning, Metrobank’s
petition is a proceeding ex parte
which did not involve De Koning as a party. Nor could there be an identity in
issues or subject matter since the only issue involved in Metrobank’s petition
is its entitlement to possess the property foreclosed, whereas De Koning’s
civil case involved the validity of the terms and conditions of the loan
documents. Furthermore, the extra-judicial foreclosure of the mortgaged
property and De Koning’s petition for certiorari
with the CA involved the issue of whether the presiding judge in the civil case
acted with grave abuse of discretion when
he denied De Koning’s motion to set for hearing the application for
preliminary injunction.
De Koning, in opposition, maintains
that Metrobank’s petition was fatally defective for violating the strict
requirements of Section 5, Rule 7 of the Rules.
As noted by both the lower court and the CA's ruling that Metrobank
failed to disclose the two pending cases he previously filed before the RTC and the CA, which both
involved the bank’s right to foreclose and, ultimately, the bank’s right to a
writ of possession by virtue of foreclosure.
De Koning also asserts that Metrobank
should have appealed the lower court’s decision and not filed a special civil
action for certiorari since the order
being questioned is one of dismissal and not an interlocutory order. According
to De Koning, since the filing of a petition for certiorari cannot be a substitute for a lost appeal and does not stop the running of the period of
appeal, the questioned RTC order has now become final and executory and the
present petition is moot and academic.
THE COURT’S RULING
We find Metrobank’s petition meritorious.
Procedural Issue
Section 1,
Rule 65 of the Rules, clearly provides that a petition for certiorari
is available only when “there is no
appeal, or any plain, speedy and adequate remedy in the ordinary course of law.” A petition for certiorari
cannot coexist with an
appeal or any other adequate remedy. The
existence and the availability of the right to appeal are antithetical to the
availment of the special civil action for certiorari. As we have long held, these two remedies are “mutually
exclusive.”[7]
Admittedly,
Metrobank’s petition for certiorari
before the CA assails the dismissal order of the RTC and, under normal
circumstances, Metrobank should have filed an appeal.
However,
where the exigencies of
the case are such that the ordinary methods of appeal may
not prove adequate -- either in point of promptness or completeness, so that a
partial if not a total failure of justice could result - a writ of certiorari
may still be issued.[8] Other
exceptions, Justice Florenz D. Regalado listed are as follows:
(1) where
the appeal does not constitute a speedy and adequate remedy (Salvadades
vs. Pajarillo, et al., 78 Phil. 77), as
where 33 appeals were involved from orders issued in a single proceeding which
will inevitably result in a proliferation of more appeals (PCIB vs. Escolin,
et al., L-27860 and 27896, Mar. 29, 1974); (2) where the orders were also issued either in excess of or without
jurisdiction (Aguilar vs. Tan, L-23600, Jun 30, 1970, Cf. Bautista, et
al. vs. Sarmiento, et al., L-45137, Sept. 231985); (3) for certain special
consideration, as public welfare or public policy (See Jose vs. Zulueta, et
al. -16598, May 31, 1961 and the cases cited therein); (4) where in
criminal actions, the court rejects rebuttal evidence for the prosecution as,
in case of acquittal, there could be no remedy (People vs. Abalos, L029039,
Nov. 28, 1968); (5) where the order is a patent nullity (Marcelo
vs. De Guzman, et al., L-29077, June 29, 1982); and (6) where the decision
in the certiorari case will avoid future litigations (St. Peter Memorial
Park, Inc. vs. Campos, et al., L-38280, Mar. 21, 1975).[9] [Emphasis
supplied.]
Grave
abuse of discretion may arise when a lower court or tribunal violates or
contravenes the Constitution, the law or existing jurisprudence.[10] As will be discussed in greater detail below, the
RTC decision dismissing Metrobank’s petition was patently erroneous and clearly
contravened existing jurisprudence. For this reason, we cannot fault Metrobank
for resorting to the filing of a petition for certiorari with the CA to remedy a patent legal error in the hope
of obtaining a speedy and adequate remedy.
Nature of a petition for a writ of possession
A
writ of possession is defined as "a writ of execution employed to enforce
a judgment to recover the possession of land. It commands the sheriff to enter
the land and give its possession to the
person entitled under the judgment."[11]
There
are three instances when a writ of possession may be issued: (a) in land
registration proceedings under Section 17 of Act No. 496; (b) in judicial
foreclosure, provided the debtor is in possession of the mortgaged realty and
no third person, not a party to the foreclosure suit, had intervened; and (c)
in extrajudicial foreclosure of a real estate mortgage under Section 7 of Act
No. 3135, as amended by Act No. 4118.[12]
The present case falls under the third instance.
The
procedure for obtaining a writ of possession in extrajudicial foreclosure cases
is found in Section 7 of Act No. 3135, as amended by Act No. 4118, which
states:
Section 7.
In any sale made under the provisions of this Act, the purchaser may petition
the Court of First Instance of the province or place where the property or any
part thereof is situated, to give him possession thereof during the redemption
period, furnishing bond in an amount equivalent to the use of the property for
a period of twelve months, to indemnify the debtor in case it be shown that the
sale was made without violating the mortgage or without complying with the
requirements of this Act. Such petition shall be made under oath and filed in
form of an ex parte motion in the registration or cadastral proceedings if
the property is registered, or in special proceedings in the case of property
registered under the Mortgage Law or under section one hundred and ninety-four
of the Administrative Code, or of any other real property encumbered with a
mortgage duly registered in the office of any register of deeds in accordance
with any existing law, and in each case the clerk of the court shall, upon the
filing of such petition, collect the fees specified in paragraph eleven of
section one hundred and fourteen of Act Numbered Four hundred and ninety-six,
as amended by Act Numbered Twenty-eight hundred and sixty-six, and the court
shall, upon approval of the bond, order that a writ of possession issue,
addressed to the sheriff of the province in which the property is situated, who
shall execute said order immediately.
Based on this provision, a writ of possession may issue
either (1) within the one year redemption period, upon the filing of a bond, or
(2) after the lapse of the redemption period, without need of a bond.[13] In
order to obtain a writ of possession, the purchaser in a foreclosure sale must file
a petition, in the form of an ex parte
motion, in the registration or cadastral proceedings of the
registered property. The reason why
this pleading, although denominated as a petition, is actually considered a motion
is best explained in Sps. Arquiza v. CA,[14] where
we said:
The certification
against forum shopping is required only in a complaint or other initiatory
pleading. The ex parte petition for the issuance of a writ of possession
filed by the respondent is not an initiatory pleading. Although the
private respondent denominated its pleading as a petition, it is, nonetheless,
a motion. What distinguishes a motion from a petition or other pleading
is not its form or the title given by the party executing it, but rather its
purpose. The office of a motion is not to initiate new litigation, but to bring
a material but incidental matter arising in the progress of the case in which
the motion is filed. A motion is not an
independent right or remedy, but is confined to incidental matters in the
progress of a cause. It relates to some question that is collateral to the main
object of the action and is connected with and dependent upon the principal
remedy. An application for a writ of possession is a mere incident in the
registration proceeding. Hence, although it was denominated as a “petition,”
it was in substance merely a motion. Thus, the CA correctly made the following
observations:
Such petition for the issuance of a writ of possession is
filed in the form of an ex parte motion, inter alia, in the registration
or cadastral proceedings if the property is registered. Apropos, as an
incident or consequence of the original registration or cadastral proceedings,
the motion or petition for the issuance of a writ of possession, not being an
initiatory pleading, dispels the requirement of a forum-shopping certification.
Axiomatic is that the petitioner need not file a certification of non-forum
shopping since his claims are not initiatory in character (Ponciano
vs. Parentela, Jr., 331 SCRA 605 [2000])
[Emphasis supplied.]
The right
to possess a property merely follows the right of ownership. Thus, after the consolidation of title in the buyer’s name for
failure of the mortgagor to redeem, the writ of possession becomes a matter of
right and its issuance to a purchaser in an extrajudicial foreclosure is merely
a ministerial function.[15] Sps. Arquiza v. CA further tells us:[16]
Indeed, it is well-settled that an ordinary action to
acquire possession in favor of the purchaser at an extrajudicial foreclosure of
real property is not necessary. There is no law in this jurisdiction whereby
the purchaser at a sheriff’s sale of real property is obliged to bring a
separate and independent suit for possession after the one-year period for redemption
has expired and after he has obtained the sheriff’s final certificate of sale. The basis of this right to possession is
the purchaser’s ownership of the property. The mere filing of an ex
parte motion for the issuance of the writ of possession would suffice, and
no bond is required. [Emphasis supplied.]
Since a petition for a writ of
possession under Section 7 of Act No. 3135, as amended, is neither a complaint
nor an initiatory pleading, a certificate against non-forum shopping is not
required. The certificate that Metrobank
attached to its petition is thus a superfluity that
the lower court should have disregarded.
No intervention allowed in
ex parte proceedings
We also
find merit in Metrobank’s contention that the lower court should not have
allowed De Koning to intervene in the proceedings.
A judicial
proceeding, order, injunction, etc., is
ex parte when it is
taken or granted at the instance and for the benefit of one party only, and
without notice to, or contestation by, any person adversely interested.[17]
Given that
the proceeding for a writ of possession, by the terms of Section 7 of Act No. 3135, is undoubtedly ex parte in nature, the lower court
clearly erred not only when it notified De Koning of Metrobank’s ex parte petition for the writ of
possession, but also when it allowed De Koning to participate in the
proceedings and when it took cognizance
and upheld De Koning’s motion to dismiss.
As we held
in Ancheta v. Metropolitan Bank and Trust
Company, Inc.:[18]
In GSIS v. Court of Appeals, this Court discussed
the inappropriateness of intervening in a summary proceeding under Section 7 of
Act No. 3135:
The proceedings in which respondent Knecht sought to
intervene is an ex parte proceeding pursuant to Sec. 7 of Act No. 3135,
and, as pointed out by petitioner, is a “judicial proceeding brought for the
benefit of one party only, and without notice to, or consent by any person
adversely interested (Stella vs. Mosele, 19 N.E., 2d. 433, 435, 299 III App.
53; Imbrought v. Parker, 83 N.E. 2d 42, 43, 336 III App. 124; City Nat. Bank
& Trust Co. v. Aavis Hotel Corporation, 280 III App. 247), x x x or a
proceeding wherein relief is granted without an opportunity for the person
against whom the relief is sought to be heard” (Restatement, Torts, S 674, p.
365, Rollo).
xxx
Intervention is
defined as “a proceeding in a suit or action by which a third person is
permitted by the court to make himself a party, either joining plaintiff in
claiming what is sought by the complaint, or uniting with defendant in
resisting the claims of plaintiff, or demanding something adversely to both of
them; the act or proceeding by which a third person becomes a party in a suit
pending between others; the admission, by leave of court, of a person not an
original party to pending legal proceedings, by which such person becomes a
party thereto for the protection of some right of interest alleged by him to be
affected by such proceedings” (33 C.J., 477, cited in Eulalio Garcia, et
al. vs. Sinforoso David, et al., 67 Phil. 279, at p. 282).
Action, under Rule 2,
Sec. 1, is defined as an ordinary suit in a court of justice, by which one
party prosecutes another for the enforcement or protection of a right,
or the prevention or redress of a wrong.
From the aforesaid definitions, it is clear that intervention contemplates a suit, and is
therefore exercisable during a trial and, as pointed out by petitioner is one which envisions the introduction of
evidence by the parties, leading to the rendition of the decision in the case
(p. 363, Rollo). Very clearly, this concept is not that contemplated by Sec. 7 of Act No. 3135,
whereby, under settled jurisprudence, the Judge has to order the immediate
issuance of a writ of possession 1) upon the filing of the proper motion and 2)
the approval of the corresponding bond. The rationale for the mandate
is to allow the purchaser to have possession of the foreclosed property without
delay, such possession being founded on his right of ownership. A trial
which entails delay is obviously out of the question. [Emphasis supplied.]
WHEREFORE, premises
considered, we GRANT the petition. The
Decision of the Court of Appeals in CA-G.R. SP No. 62325 dated November 21,
2002, as well as the orders of the Regional Trial Court of Makati City, Branch
65 in LRC Case No. M-4068 dated September 18, 2000 and October 23, 2000, is REVERSED and SET ASIDE. LRC Case No.
M-4068 is ordered remanded to the Regional Trial Court of Makati City, Branch 65,
for further proceedings and proper disposition. Costs against respondent
Manfred Jacob De Koning.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE
CONCUR:
ANTONIO
T. CARPIO
Associate Justice Chairperson |
|
|
TERESITA J. LEONARDO-DE
CASTRO Associate
Justice |
MARIANO C. DEL CASTILLO Associate Justice |
ROBERTO A.
ABAD
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.
ANTONIO T. CARPIO
Associate Justice
Chairperson
CERTIFICATION
REYNATO
S. PUNO
Chief Justice
[1] Dated June 4, 2003; rollo, pp. 10-42.
[2] Penned by Associate Justice Bernardo P. Abesamis, with the concurrence of Associate Justice Juan Q. Enriquez, Jr. and Associate Justice Edgardo F. Sundiam; id. at 48-55.
[3] Id. at 56.
[4] Sec. 5. Certification against forum shopping. - The plaintiff or principal party shall certify under oath in the
complaint or other initiatory pleading asserting a claim for relief, or in a
sworn certification annexed thereto and simultaneously filed therewith: (a)
that he has not theretofore commenced any action or filed any claim involving
the same issues in any court, tribunal or quasi-judicial agency and, to the
best of his knowledge, no such other action or claim is pending therein; (b) if
there is such other pending action or claim, a complete statement of the
present status thereof; and (c) if he should thereafter learn that the same or
similar action or claim has been filed or is pending, he shall report that fact
within five (5) days therefrom to the court wherein his aforesaid complaint or
initiatory pleading has been filed.
Failure to comply with the foregoing
requirements shall not be curable by mere amendment of the complaint or other
initiatory pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after hearing. The
submission of a false certification or non-compliance with any of the
undertakings therein shall constitute indirect contempt of court, without
prejudice to the corresponding administrative and criminal actions. If the acts
of the party or his counsel clearly constitute willful and deliberate forum
shopping, the same shall be ground for summary dismissal with prejudice and
shall constitute direct contempt, as well as a cause for administrative
sanctions.
[5] Docketed as Civil Case No. 98-2629.
[6] Docketed as CA-G.R. SP No. 53546.
[7] Ley Construction and Development Corporation v. Hyatt Industrial Manufacturing Corporation, 393 Phil. 633 (2000).
[8] Land Bank of the Philippines v. Court of Appeals, 456 Phil. 755 (2003).
[9] REMEDIAL LAW COMPENDIUM, Volume One, p. 708, (1997).
[10] Choa v. Choa, 441 Phil. 175 (2002).
[11] BLACK’S LAW DICTIONARY, 5th ed., 1979, p. 1444.
[12] Sps. Ong v. CA, 388 Phil. 857 (2000).
[13] Navarra v. CA, G.R. No. 86237, December 17, 1991, 204 SCRA 850; UCPB v. Reyes, G.R. No. 95095, February 7, 1991, 193 SCRA 756; Banco Filipino Savings and Mortgage Bank v. Intermediate Appellate Court, 225 Phil. 530 (1986); Marcelo Steel Corp. v. Court of Appeals, 153 Phil. 362 (1973); De Garcia v. San Jose, 94 Phil. 623 (1954).
[14] 498 Phil. 793 (2005).
[15] Sps. Yulienco v. Court of Appeals, 441 Phil. 397 (2002); A.G. Development Corp. v. CA, 346 Phil. 136 (1997); Navarra v. CA, G.R. No. 86237, December 17, 1991, 204 SCRA 850.
[16] Supra note 10.
[17] Supra note 11, p. 517.
[18] G.R. No. 163410, September 16, 2005, 470 SCRA 157.