|
GLORIA R.
MOTOS and MARTIN MOTOS, Petitioners, - versus - REAL BANK (A THRIFT BANK), INC., Respondent. |
G.R. No. 171386
Present: Quisumbing, J., Chairperson, Carpio Morales, CHICO-NAZARIO,* LEONARDO-DE CASTRO,** and BRION, JJ. Promulgated: July 17, 2009 |
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - -x
QUISUMBING, J.:
This appeal seeks
to set aside the Decision[1] dated
The
antecedent facts of the case are as follows:
Spouses
Martin and Gloria Motos (spouses Motos) acquired several loans from Real Bank
in the total amount of P4,000,000. To secure the obligation, they mortgaged to
the bank a land covered by Transfer Certificate of Title (TCT) No. 116759[6] on
When the
spouses failed to pay the loans, Real Bank extrajudicially foreclosed the
mortgage in accordance with Act No. 3135,[7] as amended by Act No.
4118.[8] The bank emerged as the highest bidder. Consequently, the sheriff issued a Certificate
of Sale[9] dated
After
the one-year redemption period had lapsed, the bank filed an affidavit of consolidation
with the Registry of Deeds of Quezon City. The new TCT No. N-220068 was issued in the
name of Real Bank. Thereafter, the bank filed
an Ex Parte Petition[10] for the issuance
of a writ of possession, which was docketed as LRC No. Q15302 (02) and raffled
to Branch 222 of the Quezon City RTC.
On
WHEREFORE, premises considered the instant petition is hereby GRANTED. Accordingly, let a Writ of Possession issue in
favor of petitioner and the Sheriff IV of this branch or his duly authorized
deputy is directed to place petitioner in possession of the subject property
covered by TCT No. N-220068 of the Registry of Deeds of
SO ORDERED.[11]
Subsequently,
Sheriff Neri G. Loy served a copy of the Writ of Possession[12] dated
On
In a Decision
dated
WHEREFORE, the instant petition is PARTLY GRANTED. The
assailed Decision dated
SO ORDERED.[18]
The appellate
court explained that it is the ministerial duty of the RTC to issue the writ of
possession prayed for by Real Bank since it had consolidated title to the
subject property in its name. Nevertheless,
the Court of Appeals upheld the spouses’ right to appeal the denial of their
motion to quash the writ, citing Section 8[19] of Act No. 3135.
Both parties moved
for reconsideration but were denied by Resolution[20] dated
Before us,
the spouses Motos filed the instant petition which raises the sole issue:
WHETHER OR NOT PENDING APPEAL WHICH WAS GIVEN DUE
COURSE, THE WRIT OF POSSESSION ISSUED BY THE COURT A QUO CAN BE
ENFORCED.[21]
To fully
resolve the foregoing issue, we find two questions needing a close review: (1)
whether a writ of possession may be issued ex parte; and (2) whether an order
denying a motion to quash writ of possession is appealable.
Petitioners argue that the judgment of the Court of Appeals is futile insofar
as it sustained their right to appeal but upheld the issuance of the writ of
possession by the RTC. They contend
mainly that the trial court’s grant of the writ is void for lack of notice of
hearing. Owing to this, petitioners argue,
that they were left with no recourse but to move for the quashal of the writ.
Respondent
simply counters that petitioners erred in bringing the case to this Court on a
petition for certiorari. While the
petition was captioned as a petition for certiorari, respondent points out that
petitioners neither impleaded the Court of Appeals nor alleged grave abuse of
discretion against it. Respondent also
faults the RTC for acting on the motion to quash writ of possession filed by
petitioners because said motion was not the proper petition contemplated by
law.
The instant petition
lacks merit.
Although
denominated as a petition for certiorari under Rule 65 of the Rules of Court, a
reading of the petition readily shows that the issue posed and the arguments
presented by petitioners are those cognizable under a petition for review on
certiorari. Thus, we shall proceed to
treat the instant petition as one for review on certiorari under Rule 45 of the
Rules of Court.
The first question we shall tackle concerns the propriety of the trial
court’s issuance of the writ of possession over the contested property in favor
of respondent Real Bank. Thereafter, we
shall discuss the appealability of the order denying the motion to quash the
writ of possession.
A writ of
possession is an order by which the sheriff is commanded to place a person in
possession of a real or personal property. It may be issued under any of the following
instances: (1) land registration proceedings under Section 17 of Act No. 496;[22] (2) 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 (3)
extrajudicial foreclosure of a real estate mortgage under Section 7 of Act No.
3135 as amended by Act No. 4118.[23] The third instance obtains in the instant case.
The procedure
for extrajudicial foreclosure of real estate mortgage is governed by Act No.
3135, as amended by Act No. 4118. The
purchaser at the public auction sale of an extrajudicially foreclosed real
property may seek possession thereof in accordance with Section 7 of Act No.
3135, as amended, thus:
SEC. 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 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 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. (Emphasis supplied.)[24]
A petition for the issuance of a writ
of possession under Section 7 of Act No. 3135, as amended, is not an ordinary
civil action by which one party sues another for the enforcement or protection
of a right, or the prevention or redress of a wrong. It is in the nature of an ex parte
motion, taken or granted at the instance and for the benefit of one party,
without need of notice to or consent by any party who might be adversely
affected.[25]
Moreover, during the period of
redemption, it is ministerial upon the court to issue a writ of possession in
favor of the purchaser of the mortgaged realty. The law requires only that the proper motion be
filed, the bond approved, and no third person is involved.[26] No discretion is left to the court. Any question regarding the regularity and
validity of the sale (and consequent cancellation of the writ) is left to be
determined in a subsequent proceeding as outlined in Section 8.[27] Indeed, such question should not be raised as
a justification for opposing the issuance of the writ of possession, since,
under the Act, the proceeding for this is ex parte.[28]
Upon the expiration of the redemption
period, the right of the purchaser to the possession of the foreclosed property
becomes absolute. The basis of this
right to possession is the purchaser’s ownership of the property. In like manner, the mere filing of an ex parte
motion for the issuance of the writ of possession would suffice and a bond is
no longer necessary. This is because
possession has become the absolute right of the purchaser as the confirmed
owner.[29]
It is indisputable
from the foregoing discussion that the RTC did not commit grave abuse of
discretion in issuing the writ of possession to respondent. In the same vein, the Court of Appeals
did not err in upholding the writ. When
the spouses Motos failed to redeem the foreclosed land, respondent bank, as the
purchaser at the foreclosure sale, became the absolute owner thereof. Therefore, once respondent filed the Ex
Parte Petition for the issuance of a writ of possession, it became
ministerial upon the RTC to issue the writ in its favor. By its nature, an ex parte petition for
the issuance of a writ of possession is a non-litigious proceeding authorized
under Act No. 3135, as amended.[30]
As such, petitioners were neither entitled
to a copy of the petition nor to a notice of hearing thereon. Any objection they may have had on the validity
of the sale and the writ issued pursuant thereto should have been threshed out in
a subsequent proceeding under Section 8 of Act No. 3135:
SEC. 8. Setting aside of
sale and writ of possession. – 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 dispense in his favor of all or
part of the bond furnished by their 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.)
Under the law, the mortgagor may file
a petition to set aside the sale and writ of possession before the RTC. In case the lower court denies the petition,
the mortgagor may appeal in accordance with Section 14[31] of Act No. 496,
also known as The Land Registration Act. Even then, the order of possession shall
continue in effect during the pendency of the appeal.
Here, petitioners moved to quash the
writ of possession issued by the RTC. When
the court denied the motion to quash, petitioners appealed the denial. However, the court a quo did not give
due course to the notice of appeal. Petitioners
sought reconsideration which the trial court, likewise, denied. The spouses Motos next elevated the case to
the Court of Appeals on certiorari. Much
to their relief, the appellate court reversed the Orders dated
Certainly, even
as we had sustained the appellate court in upholding the writ of possession, we
cannot take a similar stance as regards its order directing the RTC to give due
course to petitioners’ appeal. It bears
stressing that petitioners erroneously substituted a motion to quash writ of
possession for the remedy provided by law – a petition to set aside sale and
writ of possession. Resultantly, the Order
dated
An interlocutory order is one which
does not dispose of the case completely but leaves something to be decided upon.[32] Under Section 1(c),[33] Rule 41 of the Rules,
no appeal may be taken from an interlocutory order. Hence, the Court of Appeals committed reversible
error in ordering the RTC to give due course to petitioners’ appeal.
Prescinding from
the foregoing discussion, we address the sole issue which petitioners have raised
in this appeal. Petitioners inquire
whether the writ of possession issued by the RTC may be enforced “pending appeal
which was given due course.”[34]
In reality, however, the notice of
appeal which the Court of Appeals directed the RTC to give due course to is
petitioners’ appeal from the denial of their motion to quash the writ of
possession – an interlocutory order; hence, unappealable. Nonetheless, even assuming that petitioners
followed the orderly procedure and had successfully appealed a judgment
upholding the sale and issuance of the writ of possession, we must stress that Section
8 of Act No. 3135 is clear that the order of possession shall continue in
effect during the pendency of the appeal.
WHEREFORE, the petition is DENIED. The Decision dated
SO ORDERED.
|
|
LEONARDO A. QUISUMBING Associate Justice |
|
|
WE CONCUR: CONCHITA
CARPIO MORALES
Associate Justice |
||
|
MINITA V.
CHICO-NAZARIO Associate Justice |
TERESITA J.
LEONARDO-DE CASTRO Associate Justice |
|
|
ARTURO D. BRION Associate Justice |
||
A T T E S T A T I O N
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.
LEONARDO
A. QUISUMBING
Associate Justice
Chairperson
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII
of the Constitution and the Division Chairperson’s Attestation, I certify 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
* Designated member of the Second Division per Special Order No. 658.
** Designated member of the Second Division per Special Order No. 635.
[1] Rollo, pp. 17-26. Penned by Associate Justice Vicente S.E. Veloso, with Associate Justices Roberto A. Barrios and Amelita G. Tolentino concurring.
[2]
[3]
[4]
[5]
[6]
[7] An
Act to Regulate the
[8] An
Act to Amend Act Numbered Thirty-One Hundred and Thirty-Five, Entitled “An Act
to Regulate the Sale of Property Under Special Powers Inserted in or Annexed to
Real Estate Mortgages,” approved on
December 7, 1933.
[9] Rollo, p. 62.
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19] SEC. 8. Setting aside of sale and writ of possession. – 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 dispense 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.
[20] Rollo, pp. 27-32.
[21]
[22] The Land
Registration Act, approved on
[23] Fernandez v. Espinoza, G.R. No.
156421,
[24] China Banking Corporation v. Lozada,
G.R. No. 164919,
[25] Metropolitan Bank and Trust Company v.
Bance, G.R. No. 167280,
[26] Metropolitan Bank and Trust Company v.
Tan, G.R. No. 159934,
[27] Supra note 19.
[28] China Banking Corporation v. Lozada, supra at 195.
[29] Fernandez v. Espinoza, supra at 149.
[30] Metropolitan Bank and Trust Company v. Bance, supra at 520.
[31] SEC. 14. Every order, decision, and decree of the Court of Land Registration may be reviewed by the Supreme Court in the same manner as an order, decision, decree, judgment of a Court of First Instance might be reviewed, … except as otherwise provided in this section: Provided, however, That no certificates of title shall be issued by the Court of Land Registration until after the expiration of the period for perfecting a bill of exceptions for filing: And provided, further, That the Court of Land Registration may grant a new trial in any case that has not passed to the Supreme Court, in the manner and under the circumstances provided in Sections 145, 146 and 147 of Act No. 190; And, Provided, also, That the certificates of judgment to be issued by the Supreme Court, in cases passing to it from the Court of Land Registration, shall be certified to the clerk of the last-named court as well as the copies of the opinion of the Supreme Court; And provided, also, That in the bill of exceptions to be printed, no testimony or exhibits shall be printed except such limited portions thereof as are necessary to enable the Supreme Court to understand the points of law reserved. The original testimony and exhibits shall be transmitted to the Supreme Court: And provided, further, That the period within which the litigating parties must file their appeals and bills of exceptions against the final judgment in land registration cases shall be thirty days, counting from the date on which the party received a copy of the decision. (Amended by Sec. 4, Act No. 1108; Sec. 26[a] and [b], Act No. 2347.)
[32] City of
[33] SECTION
1. Subject of appeal. — An
appeal may be taken from a judgment or final order that completely disposes of
the case, or of a particular matter therein when declared by these Rules to be
appealable.
No appeal may be taken from:
(a) An order denying a motion for new trial or reconsideration;
x x x x
(c) An interlocutory order;
x x x x
In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.
[34] Supra note 21.