Lawyerly

GR No. 162757

2013-12-11

UNITED COCONUT PLANTERS BANK v. CHRISTOPHER LUMBO

BERSAMIN, J.

With particular reference to an extra-judicial foreclosure of a real estate mortgage under Act No. 3135, as amended by Act No. 4118, the purchaser at the foreclosure sale may apply ex parte with the RTC of the province or place where the property or any part of it is situated, to give the purchaser 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 should it be shown that the sale was made without violating the mortgage or without complying with the requirements of Act No. 3135; and the RTC, upon approval of the bond, order that a writ of possession be issued, addressed to the sheriff of the province in which the property is situated, who shall then execute said order immediately.[15] We underscore that the application for a writ of possession by the purchaser in a foreclosure sale conducted under Act No. 3135 is ex parte and summary in nature, brought for the benefit of one party only and without notice being sent by the court to any person adverse in interest. The relief is granted even without giving an opportunity to be heard to the person against whom the relief is sought.[16] Its nature as an ex parte petition under Act No. 3135, as amended, renders the application for the issuance of a writ of possession a non-litigious proceeding.[17] Indeed, the grant of the writ of possession is but a ministerial act on the part of the issuing court, because its issuance is a matter of right on the part of the purchaser.[18] The judge issuing the order for the granting of the writ of possession pursuant to the express provisions of Act No. 3135 cannot be charged with having acted without jurisdiction or with grave abuse of discretion.[19]

AM No. RTJ-09-2189

2011-01-18

VICTORIANO SY v. JUDGE OSCAR E. DINOPOL

PER CURIAM

Further, regardless of whether there is a pending suit for the annulment of the mortgage or the foreclosure itself, the purchaser is entitled to a writ of possession, without prejudice of course to the eventual outcome of the annulment case. Once the writ of possession is issued, the trial court has no alternative but to enforce the writ without delay.[25]

GR No. 167280

2008-04-30

METROPOLITAN BANK v. SPS. ELMOR V. BANCE AND ROSARIO J. BANCE

QUISUMBING, J.

Fourth, respondents failed to pursue the proper remedy. Under Section 8 of Act No. 3135, as amended, in case it is disputed that the writ of possession was irregularly issued, the mortgagor may file with the trial court that issued the writ a petition to set aside the sale and to cancel the writ of possession within 30 days after the purchaser-mortgagee was given possession. [34] Based on the records, the subject properties were turned over to petitioner on March 19, 2001, sometime in 2002 and July 2003. Respondents should have assailed the writ within 30 days therefrom, but they failed to do so.

GR NO. 167998

2007-04-27

LZK HOLDINGS v. PLANTERS DEVELOPMENT BANK

QUISUMBING, J.

A writ of possession is 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 possession of it to the person entitled under the judgment.[20] It may be issued in case of an extrajudicial foreclosure of a real estate mortgage under Section 7 of Act No. 3135, as amended by Act No. 4118.[21]

GR NO. 163735

2006-11-24

GREEN ASIA CONSTRUCTION AND DEVELOPMENT CORPORATION AND SPS. RENATO AND DELIA LEGASPI v. CA

QUISUMBING, J.

Any question regarding the validity of the mortgage or its foreclosure cannot be a legal ground for refusing the issuance of a writ of possession. Indeed, regardless of whether or not there is a pending suit for annulment of the mortgage or the foreclosure itself, the purchaser is entitled to a writ of possession.[17]

GR NO. 155698

2006-01-31

PHILIPPINE NATIONAL OIL COMPANY v. NATIONAL COLLEGE OF BUSINESS

QUISUMBING, J.

An order issuing a writ of possession is an order where the sheriff is commanded to place a person in possession of a real or personal property. To a purchaser in an auction sale, be it foreclosure or execution, a writ of possession is merely a ministerial function.[23] In it the Court neither exercises its official discretion nor judgment. Being a ministerial function and summary in nature, it is not a judgment on the merits, but simply an incident in the transfer of title. Hence, under such circumstances, a separate case for annulment of the sale cannot be barred by res judicata.[24]

GR NO. 163410

2005-09-16

CONCEPCION R. ANCHETA v. METROPOLITAN BANK

CALLEJO, SR., J.

In taking cognizance of the petition for a writ of possession and granting the same, the RTC did not interfere with the appeal in CA-G.R. CV No. 69922, nor did it modify or vacate the decision in Civil Case No. 98-88370. The only issue therein was whether Metrobank, the registered owner of the subject property, was entitled to the possession thereof. The RTC's order granting the petition and directing the Sheriff to place the respondent in possession of the property, conformably with the writ of possession it had issued earlier, were mere incidents to the transfer of the title over the property to the respondent. The RTC did not delve into, much less resolve, the issue of the validity or invalidity of the real estate mortgage executed in favor of the respondent, the extrajudicial foreclosure of the real estate mortgage, and the sale at public auction of the subject property. Such issues were raised in Civil Case No. 98-88370 and, thereafter, in CA-G.R. CV No. 69922, which issues have yet to be resolved with finality in the said appeal. Thus, the respondent was entitled to the possession of the property, subject, however, to the final outcome of the case on appeal. Indeed, this Court ruled in Ong v. Court of Appeals[19] that:As a rule, any question regarding the validity of the mortgage or its foreclosure cannot be a legal ground for refusing the issuance of a writ of possession. Regardless of whether or not there is a pending suit for annulment of the mortgage or the foreclosure itself, the purchaser is entitled to a writ of possession, without prejudice of course to the eventual outcome of said case. Hence, an injunction to prohibit the issuance of writ of possession is entirely out of place.

GR NO. 160479

2005-06-08

SPS. GODOFREDO V. ARQUIZA AND REMEDIOS D. ARQUIZA v. CA

CALLEJO, SR., J.

Well established is the rule that 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. Its issuance to a purchaser in an extrajudicial foreclosure is merely a ministerial function.[32] The issuance of the writ of possession being a ministerial function, and summary in nature, it cannot be said to be a judgment on the merits, but simply an incident in the transfer of title. Hence, a separate case for annulment of mortgage and foreclosure sale cannot be barred by litis pendentia or res judicata.[33]

GR NO. 160479

2005-06-08

SPS. GODOFREDO V. ARQUIZA AND REMEDIOS D. ARQUIZA v. CA

CALLEJO, SR., J.

Conversely, we reject the petitioners' argument that the ex parte petition for the issuance of a writ of possession should have been dismissed on the ground of forum shopping. The test to determine whether a party violated the rule against forum shopping is whether the elements of litis pendentia are present, or whether a final judgment in one case will amount to res judicata in another.[34] In other words, when litis pendentia or res judicata does not exist, neither can forum shopping exist. Having settled that litis pendentia does not exist, it follows then that no forum shopping likewise exists in this case. The Court's ruling in Ong vs. Court of Appeals[35] is instructive, thus:As a rule, any question regarding the validity of the mortgage or its foreclosure cannot be a legal ground for refusing the issuance of a writ of possession. Regardless of whether or not there is a pending suit for annulment of the mortgage or the foreclosure itself, the purchaser is entitled to a writ of possession, without prejudice of course to the eventual outcome of said case.[36]

AM NO. RTJ-03-1750

2005-01-14

MAMERTO MANIQUIZ FOUNDATION v. ROGELIO M. PIZARRO

CHICO-NAZARIO, J.

Indeed, the pendency of an action questioning the validity of a mortgage cannot bar the issuance of the writ of possession after title to the property has been consolidated in the mortgagee. Thus, it follows that at the expiration of the period of redemption, the mortgagee who acquires the property at the foreclosure sale can proceed to have the title consolidated in his name and a writ of possession issued in his favor.[32] More to the point is the case of Ong v. Court of Appeals,[33] where this Court held:In several cases, the Court has ruled that the issuance of a writ of possession is a ministerial function. "The order for a writ of possession issues as a matter of course upon the filing of the proper motion and the approval of the corresponding bond. The judge issuing the order following these express provisions of law cannot be charged with having acted without jurisdiction or with grave abuse of discretion." Therefore, the issuance of the writ of possession being ministerial in character, the implementation of such writ by the sheriff is likewise ministerial.

GR No. 135441

2003-11-20

ROBERTO P. TOLENTINO v. DOLORES NATANAUAN

AUSTRIA-MARTINEZ, J.

It is settled that its essence is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining favorable judgment. It exists where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in another.[32] Inasmuch as the elements of litis pendentia or res judicata are not present, as previously discussed, the lower courts correctly hold that respondents Natanauans cannot be held guilty of engaging in forum shopping.

GR No. 140316

2002-08-01

JEFFREY DAYRIT v. PHILIPPINE BANK OF COMMUNICATIONS

QUISUMBING, J.

evidence. But after going over the records, we find that petitioner has only himself to blame for failing to attend the said hearing. His neglect to show up in court is not the fault of the trial court who had no recourse but to permit respondent to present its evidence ex-parte. The records show that petitioner was notified of the date of hearing on March 9, 1995, when respondent bank presented its evidence.[13] On the matter of the writ of possession, time and again, we have ruled that its issuance is a ministerial function. In Ong vs. Court of Appeals,[14] we said: In several cases,[15] the Court has ruled that the issuance of a writ of possession is a ministerial function. "The order for a writ of possession issues as a matter of course upon the filing of the proper motion and the approval of the

	GR No. 162757 2013-12-11	UNITED COCONUT PLANTERS BANK v. CHRISTOPHER LUMBO BERSAMIN, J.
With particular reference to an extra-judicial foreclosure of a real estate mortgage under Act No. 3135, as amended by Act No. 4118, the purchaser at the foreclosure sale may apply ex parte with the RTC of the province or place where the property or any part of it is situated, to give the purchaser 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 should it be shown that the sale was made without violating the mortgage or without complying with the requirements of Act No. 3135; and the RTC, upon approval of the bond, order that a writ of possession be issued, addressed to the sheriff of the province in which the property is situated, who shall then execute said order immediately.[15] We underscore that the application for a writ of possession by the purchaser in a foreclosure sale conducted under Act No. 3135 is ex parte and summary in nature, brought for the benefit of one party only and without notice being sent by the court to any person adverse in interest. The relief is granted even without giving an opportunity to be heard to the person against whom the relief is sought.[16] Its nature as an ex parte petition under Act No. 3135, as amended, renders the application for the issuance of a writ of possession a non-litigious proceeding.[17] Indeed, the grant of the writ of possession is but a ministerial act on the part of the issuing court, because its issuance is a matter of right on the part of the purchaser.[18] The judge issuing the order for the granting of the writ of possession pursuant to the express provisions of Act No. 3135 cannot be charged with having acted without jurisdiction or with grave abuse of discretion.[19]
	AM No. RTJ-09-2189 2011-01-18	VICTORIANO SY v. JUDGE OSCAR E. DINOPOL PER CURIAM
Further, regardless of whether there is a pending suit for the annulment of the mortgage or the foreclosure itself, the purchaser is entitled to a writ of possession, without prejudice of course to the eventual outcome of the annulment case. Once the writ of possession is issued, the trial court has no alternative but to enforce the writ without delay.[25]
	GR No. 167280 2008-04-30	METROPOLITAN BANK v. SPS. ELMOR V. BANCE AND ROSARIO J. BANCE QUISUMBING, J.
Fourth, respondents failed to pursue the proper remedy. Under Section 8 of Act No. 3135, as amended, in case it is disputed that the writ of possession was irregularly issued, the mortgagor may file with the trial court that issued the writ a petition to set aside the sale and to cancel the writ of possession within 30 days after the purchaser-mortgagee was given possession. [34] Based on the records, the subject properties were turned over to petitioner on March 19, 2001, sometime in 2002 and July 2003. Respondents should have assailed the writ within 30 days therefrom, but they failed to do so.
	GR NO. 167998 2007-04-27	LZK HOLDINGS v. PLANTERS DEVELOPMENT BANK QUISUMBING, J.
A writ of possession is 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 possession of it to the person entitled under the judgment.[20] It may be issued in case of an extrajudicial foreclosure of a real estate mortgage under Section 7 of Act No. 3135, as amended by Act No. 4118.[21]
	GR NO. 163735 2006-11-24	GREEN ASIA CONSTRUCTION AND DEVELOPMENT CORPORATION AND SPS. RENATO AND DELIA LEGASPI v. CA QUISUMBING, J.
Any question regarding the validity of the mortgage or its foreclosure cannot be a legal ground for refusing the issuance of a writ of possession. Indeed, regardless of whether or not there is a pending suit for annulment of the mortgage or the foreclosure itself, the purchaser is entitled to a writ of possession.[17]
	GR NO. 155698 2006-01-31	PHILIPPINE NATIONAL OIL COMPANY v. NATIONAL COLLEGE OF BUSINESS QUISUMBING, J.
An order issuing a writ of possession is an order where the sheriff is commanded to place a person in possession of a real or personal property. To a purchaser in an auction sale, be it foreclosure or execution, a writ of possession is merely a ministerial function.[23] In it the Court neither exercises its official discretion nor judgment. Being a ministerial function and summary in nature, it is not a judgment on the merits, but simply an incident in the transfer of title. Hence, under such circumstances, a separate case for annulment of the sale cannot be barred by res judicata.[24]
	GR NO. 163410 2005-09-16	CONCEPCION R. ANCHETA v. METROPOLITAN BANK CALLEJO, SR., J.
In taking cognizance of the petition for a writ of possession and granting the same, the RTC did not interfere with the appeal in CA-G.R. CV No. 69922, nor did it modify or vacate the decision in Civil Case No. 98-88370. The only issue therein was whether Metrobank, the registered owner of the subject property, was entitled to the possession thereof. The RTC's order granting the petition and directing the Sheriff to place the respondent in possession of the property, conformably with the writ of possession it had issued earlier, were mere incidents to the transfer of the title over the property to the respondent. The RTC did not delve into, much less resolve, the issue of the validity or invalidity of the real estate mortgage executed in favor of the respondent, the extrajudicial foreclosure of the real estate mortgage, and the sale at public auction of the subject property. Such issues were raised in Civil Case No. 98-88370 and, thereafter, in CA-G.R. CV No. 69922, which issues have yet to be resolved with finality in the said appeal. Thus, the respondent was entitled to the possession of the property, subject, however, to the final outcome of the case on appeal. Indeed, this Court ruled in Ong v. Court of Appeals[19] that:As a rule, any question regarding the validity of the mortgage or its foreclosure cannot be a legal ground for refusing the issuance of a writ of possession. Regardless of whether or not there is a pending suit for annulment of the mortgage or the foreclosure itself, the purchaser is entitled to a writ of possession, without prejudice of course to the eventual outcome of said case. Hence, an injunction to prohibit the issuance of writ of possession is entirely out of place.
	GR NO. 160479 2005-06-08	SPS. GODOFREDO V. ARQUIZA AND REMEDIOS D. ARQUIZA v. CA CALLEJO, SR., J.
Well established is the rule that 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. Its issuance to a purchaser in an extrajudicial foreclosure is merely a ministerial function.[32] The issuance of the writ of possession being a ministerial function, and summary in nature, it cannot be said to be a judgment on the merits, but simply an incident in the transfer of title. Hence, a separate case for annulment of mortgage and foreclosure sale cannot be barred by litis pendentia or res judicata.[33]
	GR NO. 160479 2005-06-08	SPS. GODOFREDO V. ARQUIZA AND REMEDIOS D. ARQUIZA v. CA CALLEJO, SR., J.
Conversely, we reject the petitioners' argument that the ex parte petition for the issuance of a writ of possession should have been dismissed on the ground of forum shopping. The test to determine whether a party violated the rule against forum shopping is whether the elements of litis pendentia are present, or whether a final judgment in one case will amount to res judicata in another.[34] In other words, when litis pendentia or res judicata does not exist, neither can forum shopping exist. Having settled that litis pendentia does not exist, it follows then that no forum shopping likewise exists in this case. The Court's ruling in Ong vs. Court of Appeals[35] is instructive, thus:As a rule, any question regarding the validity of the mortgage or its foreclosure cannot be a legal ground for refusing the issuance of a writ of possession. Regardless of whether or not there is a pending suit for annulment of the mortgage or the foreclosure itself, the purchaser is entitled to a writ of possession, without prejudice of course to the eventual outcome of said case.[36]
	AM NO. RTJ-03-1750 2005-01-14	MAMERTO MANIQUIZ FOUNDATION v. ROGELIO M. PIZARRO CHICO-NAZARIO, J.
Indeed, the pendency of an action questioning the validity of a mortgage cannot bar the issuance of the writ of possession after title to the property has been consolidated in the mortgagee. Thus, it follows that at the expiration of the period of redemption, the mortgagee who acquires the property at the foreclosure sale can proceed to have the title consolidated in his name and a writ of possession issued in his favor.[32] More to the point is the case of Ong v. Court of Appeals,[33] where this Court held:In several cases, the Court has ruled that the issuance of a writ of possession is a ministerial function. "The order for a writ of possession issues as a matter of course upon the filing of the proper motion and the approval of the corresponding bond. The judge issuing the order following these express provisions of law cannot be charged with having acted without jurisdiction or with grave abuse of discretion." Therefore, the issuance of the writ of possession being ministerial in character, the implementation of such writ by the sheriff is likewise ministerial.
	GR No. 135441 2003-11-20	ROBERTO P. TOLENTINO v. DOLORES NATANAUAN AUSTRIA-MARTINEZ, J.
It is settled that its essence is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining favorable judgment. It exists where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in another.[32] Inasmuch as the elements of litis pendentia or res judicata are not present, as previously discussed, the lower courts correctly hold that respondents Natanauans cannot be held guilty of engaging in forum shopping.
	GR No. 140316 2002-08-01	JEFFREY DAYRIT v. PHILIPPINE BANK OF COMMUNICATIONS QUISUMBING, J.
evidence. But after going over the records, we find that petitioner has only himself to blame for failing to attend the said hearing. His neglect to show up in court is not the fault of the trial court who had no recourse but to permit respondent to present its evidence ex-parte. The records show that petitioner was notified of the date of hearing on March 9, 1995, when respondent bank presented its evidence.[13] On the matter of the writ of possession, time and again, we have ruled that its issuance is a ministerial function. In Ong vs. Court of Appeals,[14] we said: In several cases,[15] the Court has ruled that the issuance of a writ of possession is a ministerial function. "The order for a writ of possession issues as a matter of course upon the filing of the proper motion and the approval of the

SPS. VICTOR ONG AND GRACE TIU ONG v. CA