This case has been cited 5 times or more.
|
2008-09-19 |
QUISUMBING, J. |
||||
| Under 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. Ordinarily, a purchaser of property in an extrajudicial foreclosure sale is entitled to possession of the property. Thus, whenever the purchaser prays for a writ of possession, the trial court has to issue it as a matter of course.[9] However, the obligation of the trial court to issue a writ of possession ceases to be ministerial once it appears that there is a third party in possession of the property claiming a right adverse to that of the debtor/mortgagor.[10] Where such third party exists, the trial court should conduct a hearing to determine the nature of his adverse possession.[11] | |||||
|
2005-10-14 |
CHICO-NAZARIO, J. |
||||
| It is a basic principle of law that money judgments are enforceable only against property unquestionably belonging to the judgment debtor, and any third person adversely affected by the mistaken levy of his property to answer for another man's debt may validly assail such levy through the remedies provided for by Rule 39 of the Rules of Court. Under said rule, a third person may avail himself of the remedies of (1) terceria[16] to determine whether the sheriff has rightly or wrongly taken hold of the property not belonging to the judgment debtor or obligor; and (2) independent "separate action" to vindicate their claim of ownership and/or possession over the foreclosed property.[17] If a "separate action" is the recourse, the third-party claimant must institute in a forum of competent jurisdiction an action, distinct and separate from the action in which the judgment is being enforced, even before or without need of filing a claim in the court that issued the writ.[18] | |||||
|
2005-06-08 |
CALLEJO, SR., J. |
||||
| The petitioners fault the trial court for not delving into the validity of the mortgage and the foreclosure proceeding before granting the petition for a writ of possession. This contention is barren of legal basis. The judge to whom an application for writ of possession is filed need not look into the validity of the mortgage or the manner of its foreclosure. In the issuance of a writ of possession, no discretion is left to the trial court. Any question regarding the cancellation of the writ or in respect of the validity and regularity of the public sale should be determined in a subsequent proceeding as outlined in Section 8 of Act No. 3135.[45] | |||||
|
2004-05-20 |
PANGANIBAN, J. |
||||
| This Court has consistently held that the duty of the trial court to grant a writ of possession is ministerial.[40] Such writ issues as a matter of course upon the filing of the proper motion and the approval of the corresponding bond. No discretion is left to the trial court.[41] Any question regarding the regularity and validity of the sale, as well as the consequent cancellation of the writ, is to be determined in a subsequent proceeding as outlined in Section 8 of Act 3135. [42] Such question cannot be raised to oppose the issuance of the writ, since the proceeding is ex parte.[43] The recourse is available even before the expiration of the redemption period provided by law and the Rules of Court.[44] | |||||
|
2003-08-15 |
YNARES-SANTIAGO, J. |
||||
| Petitioner did not present or offer as evidence the promissory note, real estate mortgage, statement of account and demand letter. The said documents are deemed necessary as basis of the unpaid claim and the foreclosure sale. But it is not clear whether said documents were executed at all. Without them this Court is not fully convinced that the petition for writ of possession should be granted.[20] This was error. The judge to whom an application for writ of possession is filed need not look into the validity of the mortgage or the manner of its foreclosure. In the issuance of a writ of possession, no discretion is left to the trial court. Any question regarding the cancellation of the writ or in respect of the validity and regularity of the public sale should be determined in a subsequent proceeding as outlined in Section 8 of Act No. 3135,[21] 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 Number 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. Until the foreclosure sale of the property in question is annulled by a court of competent jurisdiction, the issuance of the writ of possession remains the ministerial duty of the trial court. Hence, the trial court erred in denying the petition for issuance of writ of possession on the grounds stated. | |||||