Republic of the
Philippines
Supreme Court
Manila
FIRST DIVISION
|
VIOLA CAHILIG and ANTONIO G. SIEL,
JR., Petitioners, - versus - HON.
EUSTAQUIO G. TERENCIO, Regional Trial Court of Kalibo, Aklan, Branch 8; THE
PROVINCIAL SHERIFF, Kalibo, Aklan; and MERCANTILE CREDIT RESOURCES
CORPORATION, Respondents. |
|
G.R.
No. 164470
Present: CORONA, C.J.,
Chairperson, LEONARDO-DE
CASTRO, BERSAMIN, DEL CASTILLO, and VILLARAMA, JR., JJ. Promulgated: November
28, 2011 |
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LEONARDO-DE CASTRO, J.:
In this petition for review on certiorari with a prayer for the
issuance of a writ of preliminary mandatory injunction under Rule 45 of the 1997
Rules of Civil Procedure, the Court is urged to annul and set aside the
Decision[1]
dated July 23, 2003 as well as the Resolution[2]
dated July 9, 2004 both issued by the Court of Appeals in CA-G.R. SP No. 76475,
entitled, Viola Cahilig and Antonio G.
Siel, Jr. v. Hon. Eustaquio G. Terencio, Mercantile Credit Resources
Corporation and the Provincial Sheriff, Kalibo, Aklan. The July 23, 2003 Decision dismissed for lack
of merit the petition for certiorari
filed by petitioners assailing the issuance of an alias writ of possession via
an Order[3]
dated December 20, 2002 by the Regional Trial Court (RTC) of Kalibo, Aklan,
Branch 8 in SP. Proc. No. 6923, entitled In
The Matter For Ex-Parte Issuance Of Writ Of Possession Covering Lot 402-Part,
Being A Portion Of Lot 402, NR-06-000001 (And Its Improvements Thereon) Malay
Cadastre, Covered By ARP/TD No. 93-003-1674 (PIN-038-12-003-13-014), Pursuant
To Section 7 Of Act No. 3135. The July 9, 2004 Resolution, on the other
hand, denied petitioners motion for reconsideration.
The facts of this case, as outlined
in the Decision dated July 23, 2003 of the Court of Appeals, follow:
It appears that on April 14, 1997 and September 17,
1997, Soterania G. Siel executed deeds of real estate mortgage covering a
portion of Lot 402, consisting of 2,882 square meters, located at Barangay
Balabag, Malay, Aklan, in favor of Moneytrend Lending Corporation, as security
for two promissory notes.
On
March 31, 1999, Moneytrend Lending Corporation assigned the promissory notes
and deeds of real estate mortgage to private respondent Mercantile Credit
Resources Corporation.
In
view of the non-payment of the loans, private respondent caused the
extrajudicial foreclosure of the mortgages. It then acquired the mortgaged
property as the highest bidder. A certificate of sale was subsequently issued
in favor of private respondent. Soterania Siel failed to redeem the property
within the prescribed period and a final deed of sale was issued by the Sheriff
on March 19, 2001 in favor of private respondent.
On
May 2, 2001, private respondent filed with the Regional Trial Court, Branch 8,
Kalibo, Aklan an ex-parte motion for
the issuance of a writ of possession over the subject property. In an Order
dated June 29, 2001, respondent Judge granted the motion and directed the
Sheriff to place private respondent in possession of the subject property,
ruling thus:
Jhett
Tolentino, Corporate Secretary of the petitioner, testified that from the time
the mortgage was constituted and thereafter assigned to the petitioner, it was
the mortgagor who remained in possession of the mortgaged property. Lately,
when he inspected the property after it was foreclosed, it was Viola Cahilig,
the daughter of Soterania G. Siel, the previous owner, who was in possession
of the same.
In
the light of the foregoing, petitioner would want now that a writ of possession
be issued in its favor citing the provisions of Sec. 7 of R.A. 3135.
After
a careful assessment of the evidence, the Court is convinced that the
petitioner has substantiated all its allegations in the petition that entitles
the petitioner to the issuance of the writ.
In
IFC v. Nerta (19 SCRA 181) it was held that in Extrajudicial Foreclosure of
Real Estate Mortgage, the possession of the property sold may be given to the
purchaser by the sheriff after the period of redemption had expired unless a
third person is actually holding the property adverse to the mortgagor. An
ordinary action for the recovery of possession is not necessary.
From
the evidence, it was shown that the property sought to be possessed by the
petitioner by virtue of this petition is not in the possession of any third
person. The present possessor is the immediate successor-in-interest of the mortgagor.
A
motion for reconsideration was filed by petitioner Viola Cahilig, for herself
and in behalf of the heirs of Soterania Siel, alleging that private respondent
is guilty of forum shopping in view of the pendency of the appeal in Civil Case
No. 6247 involving the same parties and subject matter. The motion for
reconsideration was denied in an Order dated October 18, 2001.
The
writ of possession was implemented by Sheriff Victor B. Beluso on January 21,
2002 by serving a notice to vacate on petitioner Viola Cahilig, who manifested
that she could turn over only her 1/6 share over the property as the other
shares do not belong to her. On March 11, 2002, the Sheriff received a third
party claimants affidavit executed by petitioner Antonio Siel, Jr., who
claimed that he and his siblings bought the property from their mother,
Soterania Siel, on March 2, 1993, attaching thereto copies of the deeds of
sale in their favor.
On
November 25, 2002, private respondent filed a motion for the issuance of an
alias writ of possession. Said motion was opposed by petitioners Viola Cahilig
and Antonio G. Siel, Jr. alleging that they and their siblings have been the
owners of the property since 1993, that is, before the mortgage was
constituted. In an Order dated December 20, 2002, respondent Judge granted the
motion for the issuance of an alias writ of possession and directed the Sheriff
to implement the same, with police assistance if necessary.
Petitioners
motion for reconsideration, motion for inhibition and motion to quash the alias
writ of possession were denied in an Order dated March 21, 2003, although
private respondent was ordered to post an indemnity bond in the amount of P100,000.00
to answer for whatever damages petitioners may suffer in the event that they
would be able to vindicate their claim in the civil cases they filed against
private respondent. An indemnity supersedeas bond was then filed by private
respondent and approved by respondent Judge.[4]
On
March 28, 2003, petitioners instituted a special civil action for certiorari alleging grave abuse of
discretion on the part of respondent Judge Eustaqio G. Terencio for not
quashing the alias writ of possession in view of their third-party claim and
irregularities in the mortgage transactions as the loans were allegedly not
obtained by Soterania Siel but by petitioner Viola Cahilig and Shirley
Candolita. Petitioners prayed for the
issuance of a restraining order to enjoin the implementation of the alias writ
of possession.[5]
This
was followed by the filing of a Supplemental Petition for Certiorari with Preliminary Injunction with Leave of Court[6]
on April 11, 2003 and a Second Supplemental Petition for Certiorari with Prayer for Preliminary Mandatory Injunction with
Leave of Court and Motion for Contempt of Court[7]
on April 22, 2003. The latter pleading
alleged that respondent Provincial Sheriff, accompanied by private respondents
counsel and escorted by police officers, forcibly ejected petitioner Viola
Cahilig from the subject property, injured the latter, and destroyed the
structures located therein.
In
its July 23, 2003 Decision, the Court of Appeals pointed out that the principal
issue to be resolved in the case being appealed by the petitioners is whether
or not petitioners are third parties holding the subject property adversely to
the judgment debtor which was the late Soterania Siel. The Court of Appeals ruled in the negative and
dismissed the petition for certiorari
for lack of merit.
A motion for reconsideration was
filed by petitioners but this was denied by the Court of Appeals in its July 9,
2004 Resolution.
Hence, petitioners take this appeal
wherein they put forth the following issues for consideration:
I
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN
NOT NULLIFYING THE ALIAS WRIT OF POSSESSION ISSUED BY THE TRIAL COURT
CONSIDERING THAT PETITIONERS, BEFORE THEIR FORCIBLE EVICTION, HAVE ACTUALLY
POSSESSED THE SUBJECT PROPERTY AS THIRD [PARTIES] ADVERSE TO THE MORTGAGOR,
SOTERANIA SIEL, AS EVIDENCED BY THE THIRD PARTY CLAIM AND THE NOTARIZED DEEDS
OF SALE.
II
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
HOLDING THAT THE DEEDS OF SALE EXECUTED BY THE PETITIONERS MOTHER, SOTERANIA
SIEL, IN THEIR FAVOR AND THEIR SIBLINGS ARE FICTITIOUS AND WERE ONLY PREPARED
TO THWART THE IMPLEMENTATION OF THE WRIT OF POSSESSION, MERELY RELYING ALONE
ON THE ALLEGED ADMISSION OF PETITIONERS
IN THEIR SUPPLEMENTAL PETITION FOR CERTIORARI THAT THEY HAVE INHERITED THE
SUBJECT PROPERTY FROM THEIR DECEASED MOTHER, BUT OVERLOOKING THE CONSISTENT AND
INSISTENT CLAIM OF PETITIONERS THAT THE ONE-SIXTH (1/6) PORTIONS OF THE
PROPERTY WERE SOLD TO PETITIONERS AND THE SIBLINGS FOR A VALUABLE
CONSIDERATION, AND CONSIDERING THAT SAID DOCUMENTS, BEING NOTARIZED, ARE
ENTITLED TO THE PRESUMPTION OF REGULARITY AND ENTITLED TO BE GIVEN WEIGHT AND
PROBATIVE VALUE.
III
THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE
MISAPPREHENSION OF FACTS AND GROSSLY MISSAPRECIATED THE EVIDENCE IN GRANTING
THE ISSUANCE OF AN ALIAS WRIT OF POSSESSION DESPITE FATAL DEFECTS OF THE
EXTRAJUDICIAL FORECLOSURE PROCEEDINGS AND IN CONSIDERING AS OF NO MOMENT THE
PENDENCY OF THE APPEALED CASES BEFORE THE COURT OF APPEALS FOR ANNULMENT AND/OR
DECLARATION OF THE NULLITY OF THE DEEDS OF REAL ESTATE MORTGAGE AND FORECLOSURE
PROCEEDINGS, INCLUDING THE CRIMINAL CASE FOR ESTAFA, AND THAT THE ISSUANCE OF
THE WRIT OF POSSESSION TO A PURCHASER IN AN EXTRAJUDICIAL FORECLOSURE SALE IS
MERELY A MINISTERIAL FUNCTION OF THE COURT AND MAY NOT BE STAYED BY A PENDING
ACTION FOR ANNULMENT OF MORTGAGE OR THE FORECLOSURE ITSELF.
IV
THE DECISION OF THE HONORABLE COURT OF APPEALS
DISREGARDED AND/OR FAILED TO RESOLVE THE VITAL ISSUES RAISED BY PETITIONERS IN
THEIR SECOND SUPPLEMENTAL PETITION AND THE MOTION FOR CONTEMPT CONCERNING THE
FORCIBLE EJECTMENT OF PETITIONER VIOLA CAHILIG FROM THE SUBJECT PROPERTY,
INJURING HER AND DESTROYING THE STRUCTURES BELONGING TO HER AND OTHER OCCUPANTS
ERECTED ON THE SUBJECT PROPERTY.[8]
On
the other hand, private respondent, in its Memorandum,[9]
presented the following issues for resolution:
a.
Whether
or not the Petition had complied with the mandatory requirement of execution of
non-forum shopping certification by petitioners.
b.
Whether
or not petitioner Viola Cahilig is a third-party claimant to the subject
property adverse to the judgment debtor Soterania Siel.
c.
Whether
or not petitioner Viola Cahilig is bound by the Alias Writ of Possession, as
she was bound by the original Writ of Possession.
d.
Whether
or not the case at bar challenging the issuance and the implementation of the
Alias Writ of Possession can continue to survive after the issues on the
validity of the mortgage and of the foreclosure proceedings of the subject
property had already been decided and rendered res judicata in favor of respondent Mercantile Credit Resources
Corporation and of its predecessor-in-interest.[10]
The
petition is without merit.
In
fine, the focal issue of this case is whether or not the issuance of the writ
of possession over the property subject of the foreclosure of the real estate mortgage
is proper.
We
previously held in Villanueva v. Cherdan
Lending Investors Corporation[11]
that:
A writ of
possession is an order of the court commanding the sheriff to place a person in
possession of a real or personal property. It may be issued in an extrajudicial
foreclosure of a real estate mortgage under Section 7 of Act 3135, as amended
by Act 4118, 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 or of a separate and independent action.[12]
The
aforementioned provision of law, Section 7 of Act 3135 as amended, in turn,
states:
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.
Moreover,
in Asia United Bank v. Goodland Company,
Inc.,[13]
we pointed out that:
It is a
time-honored legal precept that after the consolidation of titles in the
buyers name, for failure of the mortgagor to redeem, entitlement to a writ of
possession becomes a matter of right. As the confirmed owner, the purchasers
right to possession becomes absolute. There
is even no need for him to post a bond, and it is the ministerial duty of the
courts to issue the same upon proper application and proof of title. To accentuate the writs ministerial
character, the Court has consistently disallowed injunction to prohibit its
issuance despite a pending action for
annulment of mortgage or the foreclosure itself.[14]
(Emphasis supplied.)
In
the case at bar, there is no dispute that private respondent caused the
extrajudicial foreclosure of the real estate mortgage pursuant to Section 7 of Act
3135, as amended by Act 4118, over the property at issue after Soterania Siel
defaulted on her loan payments when they became due under the promissory notes
she had executed. It is likewise
undisputed that private respondent purchased the same property at the
extrajudicial foreclosure sale and, as a result thereof, a certificate of sale
was issued in its favor. Following
Soterania Siels failure to redeem the property within the prescribed period,
a final deed of sale was issued by the Sheriff in the name of private
respondent.
Given
this factual premise, private respondent acted well within its legal rights
when it petitioned the trial court ex parte
for the issuance of a writ of possession which the trial court eventually
granted. We note, too, that the trial
court issued the alias writ of possession only after giving due consideration
to petitioners motion for reconsideration and, subsequently, to their supposed
third-party claim wherein petitioners allege that they and their other siblings
had already bought the subject property from their mother, the now deceased
Soterania Siel, prior to the constitution of the mortgage and that they were
in actual possession of the land in dispute.
It
is on the strength of this third-party claim that petitioners doggedly oppose
the trial courts issuance of the said writ of possession arguing that under Section
33, Rule 39 of the Rules of Court, which is made to apply suppletorily to the
extrajudicial foreclosure of real estate mortgages under Section 6 of Act 3135,
as amended by Act 4118,[15]
the possession of the mortgaged property may be awarded to a purchaser in the
extrajudicial foreclosure unless a third party is actually holding the property
adversely to the judgment debtor, to wit:
Sec. 33. Deed and possession to be given at
expiration of redemption period; by whom executed or given. - If no
redemption be made within one (1) year from the date of the registration of the
certificate of sale, the purchaser is entitled to a conveyance and possession
of the property; or, if so redeemed whenever sixty (60) days have elapsed and
no other redemption has been made, and notice thereof given, and the time for redemption
has expired, the last redemptioner is entitled to the conveyance and
possession; but in all cases the judgment obligor shall have the entire period
of one (1) year from the date of the registration of the sale to redeem the
property. The deed shall be executed by the officer making the sale or by his
successor in office, and in the latter case shall have the same validity as
though the officer making the sale had continued in office and executed it.
Upon the
expiration of the right of redemption, the purchaser or redemptioner shall be
substituted to and acquire all the rights, title, interest and claim of the
judgment obligor to the property as of the time of the levy. The possession of
the property shall be given to the purchaser or last redemptioner by the same
officer unless a third party is actually
holding the property adversely to the judgment obligor. (Emphasis
supplied.)
In
a number of cases, we have held that the obligation of the court to issue an ex parte writ of possession in favor of
the purchaser in an extrajudicial foreclosure sale ceases to be ministerial
once it appears that there is a third party in possession of the property who
is claiming a right adverse to that of the debtor/mortgagor.[16]
However,
unlike in those cases, the third-party claim in the instant case was not
presented at the onset of litigation. In
fact, it was not the original theory propounded by petitioners when they filed
a motion for reconsideration of the Order[17]
dated June 29, 2001 issued by the trial court which first granted the writ of
possession in private respondents favor. More importantly, the judicial admissions made
by petitioners in their motion were wholly incompatible with their belated
claim that they are actually vendees of Soterania Siels property.
Judicial
admissions are discussed in Section 4, Rule 129 of the Rules of Court which
states that:
Sec. 4. Judicial Admissions. - An admission,
verbal or written, made by a party in the course of the proceedings in the same
case, does not require proof. The admission may be contradicted only by showing
that it was made through palpable mistake or that no such admission was made.
In
Maagad v. Maagad,[18]
we explained:
It is
well-settled that a judicial admission conclusively binds the party making it. He cannot thereafter take a position
contradictory to, or inconsistent with his pleadings. Acts or facts admitted do not require proof
and cannot be contradicted unless it is shown that the admission was made
through palpable mistake or that no such admission was made.[19]
In
the case at bar, petitioners admitted in their Urgent Motion for
Reconsideration[20]
dated July 23, 2001 that they opposed the issuance of the writ of possession
over the subject property because of the pendency of Civil Case No. 6247 filed
before the RTC of Kalibo, Aklan, Branch 6. In the said civil case, petitioners, along
with their other siblings, sought the annulment of the real estate mortgage and
the foreclosure proceedings affecting the subject property in their capacity as
heirs of the now deceased Soterania Siel and not as vendees to an alleged sale
of the land in dispute. It must be stressed that petitioners raised for the
first time their theory that they are third parties (vendees) holding the
property adversely to the mortgagor only in their Opposition to the Motion for
Issuance of Alias Writ of Possession, after the trial court had already issued
the first order granting a writ of possession to private respondent and after
the above-mentioned Urgent Motion for Reconsideration (of the original order
issuing a writ of possession) had been denied.
In
light of this written admission in their pleading, petitioners cannot be
allowed to subsequently claim in the same proceedings that they oppose the
issuance of the writ of possession because they already owned the subject
property prior to the constitution of the mortgage without first showing that
the contradictory admission was made through palpable mistake or that no such
admission was made. This petitioners
failed to do and, worse, they offer no explanation as to why they failed to
adduce evidence of the purported sale of the property in their favor at the
earliest opportunity. As a consequence
thereof, they must be bound by their original admission that they are merely
successors in interest of the mortgagor, rather than adverse claimants.
Moreover,
it is not disputed that the subject property is unregistered land and is
covered by a tax declaration in the name of Soterania Siel when the same was
mortgaged by her in 1997 in favor of private respondents
predecessor-in-interest, Moneytrend Lending Corporation. As correctly pointed
out by the Court of Appeals, Section 113 of Presidential Decree No. 1529 or the
Property Registration Decree is applicable and the same provides that (n)o deed, conveyance, mortgage, lease, or
other voluntary instrument affecting land not registered under the Torrens
system shall be valid, except as between the parties thereto, unless such
instrument shall have been recorded in the manner herein prescribed in the
office of the Register of Deeds for the province or city where the land lies. x
x x.
In
the present case, petitioners failed to adduce evidence showing that the deeds
of sale in their favor were recorded in the office of the Register of Deeds or
that they were annotated on the tax declaration of Soterania Siel in order to
affect the subject property insofar as third persons are concerned, specially
private respondent and its predecessor-in-interest. Petitioners likewise failed to prove that
private respondent and its predecessor-in-interest had actual or constructive
knowledge of the alleged sale of the subject property in their favor prior to
the filing of the third-party claim. Lastly,
petitioners did not dispute the testimony of private respondents Corporate
Secretary, Jhett Tolentino, who stated that it was Soterania Siel who was in
possession of the subject property when the mortgage was constituted, which was
later assigned to private respondent, and that it was only after the subject
property was foreclosed that the same was possessed by petitioner Viola
Cahilig. Thus, in light of the
foregoing, the alleged sale of the land in dispute, even if true, does not bind
private respondent.
All
in all, we find that the Court of Appeals committed no reversible error when it
affirmed the trial courts issuance of a writ of possession in the present
case, despite the pendency of civil proceedings to annul the mortgage and the
foreclosure sale and in light of petitioners own failure to prove (a) their
status as third parties to the mortgage, and (b) notice to the mortgagee of the
supposed sale of the subject property in their favor. As discussed above, these actions on the part
of the lower courts were in keeping with prevailing jurisprudence.
WHEREFORE, premises considered, the petition is DENIED.
The assailed
Decision dated July 23, 2003 as well as the Resolution dated July 9, 2004 of
the Court of Appeals in CA-G.R. SP No. 76475 are AFFIRMED.
SO
ORDERED.
Associate Justice
WE CONCUR:
Chief Justice
Chairperson
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LUCAS P. BERSAMIN Associate
Justice
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MARIANO C. DEL CASTILLO Associate Justice
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MARTIN S. VILLARAMA, JR. Associate
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Chief Justice
[1] Rollo, pp. 42-52; penned by Associate
Justice Marina L. Buzon with Associate Justices Rebecca de Guia-Salvador and
Jose C. Mendoza (now a member of this Court), concurring.
[2] Id.
at 54-55.
[3] Id.
at 83-84.
[4] Id.
at 43-45.
[5] Id.
at 116-126.
[6] Id.
at 127-156.
[7] Id.
at 157-183.
[8] Id.
at 18-20.
[9] Id.
at 562-683.
[10] Id.
at 597-598.
[11] G.R. No. 177881, October 13, 2010, 633 SCRA 173.
[12] Id. at 180.
[13]
G.R.
No. 188051, November 22, 2010, 635 SCRA 637.
[14] Id.
at 646.
[15] In all cases in which an extrajudicial sale is made under the special
power hereinbefore referred to, the debtor, his successors in interest or any
judicial creditor or judgment creditor of said debtor, or any person having a
lien on the property subsequent to the mortgage or deed of trust under which
the property is sold, may redeem the same at any time within the term of one
year from and after the date of the sale; and such redemption shall be governed
by the provisions of sections four hundred and sixty-four to four hundred and
sixty-six, inclusive, of the Code of Civil Procedure, in so far as these are
not inconsistent with the provisions of this Act.
[16] Villanueva v. Cherdan Lending Investors Corporation, supra note 11; Bank of the Philippine Islands v. Icot,
G.R. No. 168061, October 12, 2009, 603 SCRA 322, 332; Development Bank of the Philippines v. Prime Neighborhood Association,
G.R. Nos. 175728 & 178914, May 8, 2009, 587 SCRA 582, 594; Dayot v. Shell Chemical Company (Phils.),
Inc., G.R. No. 156542, January 26, 2007, 525 SCRA 535, 548; Philippine National Bank v. Court of Appeals,
424 Phil. 757, 770 (2002).
[17] Rollo, pp. 60-62.
[18]
G.R. No.
171762, June 5, 2009, 588 SCRA 649.
[19] Id. at 659.
[20] Rollo, pp. 662-676. It is stated in the motion itself that
petitioner Viola Cahilig filed the same for herself and on behalf of the heirs of
Soterania Siel, including co-petitioner Antonio Siel, Jr.