Writ of possession

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A writ of possession is an order of the court commanding the sheriff to place a person in possession of a real property or personal property.[1] It is an order enforcing a judgment to allow a person’s recovery of possession of real or personal property. 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".[2] A writ of possession may be issued under the following instances:[3] (1) in land registration proceedings under Section 17 of Act No. 496;[4] (2) in a 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; (3) in an extrajudicial foreclosure of a real estate mortgage under Section 7 of Act No. 3135, as amended by Act No. 4118;[5] and (4) in execution sales under the last paragraph of Section 33, Rule 39 of the Rules of Court. It is important to be mindful of the applicability of rules and jurisprudence in each case.[6]


Contents

Writ of possession in an execution sale

In an execution sale, 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 purchaser or redemptioner is thus entitled to a writ of possession. Section 33, Rule 39 (Execution, Satisfaction and Effects of Judgments) of the Rules of Court provides;

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.

A proceeding for the issuance of a writ of possession is a mere incident in the transfer of title;[7] the courts may not grant the writ where title is in doubt, as when there is an intervention cum third-party claim. The prudent course of action is to hold in abeyance proceedings for the issuance of the writ. Actual possession under claim of ownership raises a disputable presumption of ownership. The true owner must resort to judicial process for the recovery of the property, not summarily through a motion for the issuance of a writ of possession.[8]

Where a parcel levied upon execution is occupied by a party other than a judgment debtor, the procedure is for the court to order a hearing to determine the nature of said adverse possession.[9]. However, the hearing was not necessary in Guevara vs. Ramos,[10] for the following reasons:

  • 1. The third party-claimants here were not in possession of the disputed land when it was sold at public auction pursuant to the writ of execution and they were not in possession with they filed their third-party claim.
  • 2. When the land was levied upon and when it was sold on execution it was declared for taxation in the names of the judgment debtors, who were the ones then in possession. Quite obviously the third-party claimants' belated move to take possession was designed to defeat the purchaser's right to the same.[11]


Issuance of a writ of possession in foreclosure of mortgage

An instance when a writ of possession may issue is under Act No. 3135, as amended by Act No. 4118, on extrajudicial foreclosure of real estate mortgage.[12] It is not necessary to initiate an original action in order for the purchaser at an extrajudicial foreclosure of real property to acquire possession. Even if an application for the writ of possession is denominated as a "petition", it is in substance merely a motion, which needs no verification and certification on non-forum shopping.[13]

The ex parte petition for the issuance of a writ of possession under Section 7[14] of Act No. 3135 is not, strictly speaking, a "judicial process" as contemplated in Article 433 of the Civil Code. As a judicial proceeding for the enforcement of one's right of possession as purchaser in a foreclosure sale, it is not an ordinary suit by which one party "sues another for the enforcement of a wrong or protection of a right, or the prevention or redress of a wrong."[15] The nature of the ex parte petition for issuance of possessory writ under Act No. 3135 is a non-litigious proceeding and summary in nature.[16] As an ex parte proceeding, it is brought for the benefit of one party only, and without notice to, or consent by any person adversely interested. It is a proceeding where the relief is granted without requiring an opportunity for the person against whom the relief is sought to be heard. There is no denial of due process when the trial court issues a writ of possession without notice.[17]

The law does not require that a petition for a writ of possession may be granted only after documentary and testimonial evidence shall have been offered to and admitted by the court. As long as a verified petition states the facts sufficient to entitle the petitioner to the relief requested, the court shall issue the writ prayed for. There is no need for petitioners to offer any documentary or testimonial evidence for the court to grant the petition.[18]

As a rule, any question regarding the validity of the mortgage or its foreclosure is not a legal ground for refusing the issuance of a writ of execution/writ of possession.[19] The right of the purchaser to have possession of the subject property would not be defeated notwithstanding the pendency of a civil case seeking the annulment of the mortgage or of the extrajudicial foreclosure.[20] The trial court, where the application for a writ of possession is filed, does not need to look into the validity of the mortgage or the manner of its foreclosure.[21] The purchaser is entitled to a writ of possession without prejudice to the outcome of the pending annulment case.[22]

When a writ of possession may issue

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.[23]

Within the redemption period

Section 7 of Act No. 3135 explicitly authorizes the purchaser in a foreclosure sale to apply for a writ of possession during the redemption period by filing an ex parte motion under oath for that purpose "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" with the Regional Trial Court of the province or place where the real property or any part thereof is situated, in the case of mortgages duly registered with the Registry of Deeds. Upon filing of such motion and the approval of the corresponding bond, the law also directs in express terms the said court to issue the order for a writ of possession.[24]

Within the redemption period the purchaser in a foreclosure sale may apply for a writ of possession by filing for that purpose an ex-parte motion under oath, in the corresponding registration or cadastral proceeding in the case of property covered by a Torrens title. Upon the filing of an ex-parte motion and the approval of the corresponding bond, the court is expressly directed to issue the order for a writ of possession.[25]

The posting of a bond as a condition for the issuance of the writ of possession becomes necessary only if it is applied for within one year from the registration of the sale with the register of deeds, i.e., during the redemption period inasmuch as ownership has not yet vested on the creditor-mortgagee.[26]

After expiration of redemption period

The right of the purchaser to the possession of the foreclosed property becomes absolute upon the expiration of the redemption period. The basis of this right to possession is the purchaser's ownership of the property. 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.[27]

After the lapse of the redemption period, a writ of possession may be issued in favor of the purchaser in a foreclosure sale as the mortgagor is now considered to have lost interest over the foreclosed property. Consequently, the purchaser, who has a right to possession after the expiration of the redemption period, becomes the absolute owner of the property when no redemption is made. The purchaser can demand possession at any time following the consolidation of ownership in his name and the issuance to him of a new TCT. After consolidation of title in the purchaser’s name for failure of the mortgagor to redeem the property, the purchaser’s right to possession ripens into the absolute right of a confirmed owner. At that point, the issuance of a writ of possession, upon proper application and proof of title, to a purchaser in an extrajudicial foreclosure sale becomes merely a ministerial function.21 Effectively, the court cannot exercise its discretion.[28]

After the one-year period, however, the mortgagor loses all interest over it. The purchaser, who has a right to possession that extends after the expiration of the redemption period, becomes the absolute owner of the property when no redemption is made. Thus, the posting of a bond is no longer needed.[29]

Issuance of a writ of possession a ministerial duty

As a rule, it is ministerial upon the court to issue a writ of possession after the foreclosure sale and during the period of redemption.[30]

The buyer in a foreclosure sale becomes the absolute owner of the property purchased if it is not redeemed within one year after the registration of the sale. As such, he is entitled to the possession of the property and can demand that he be placed in possession at any time following the consolidation of ownership in his name and the issuance to him of a new Transfer Certificate of Title (TCT).[31] It is a ministerial duty of the court to issue a writ of possession after the foreclosure sale and during the period of redemption. Upon the filing of an ex parte motion and the approval of the corresponding bond, the court issues the order for a writ of possession. The writ of possession issues as a matter of course even without the filing and approval of a bond after consolidation of ownership and the issuance of a new TCT in the name of the purchaser.[32]

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.[33] 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.[34]

Where the court acts on a matter that is within its jurisdiction, grave abuse of discretion must be shown to nullify the act. The issuance of the writ of possession does not involve an exercise of discretion and, therefore, no abuse of discretion could have been committed by the trial court.[35] If only to stress the writ’s ministerial character, the Supr has disallowed injunction to prohibit its issuance, just it has held that the issuance of the same may not be stayed by a pending action for annulment of mortgage or the foreclosure itself.[36]

Remedy against an application or issuance of a writ of possession

When a writ of possession has been issued, the proper remedy is an appeal (ordinary appeal if the aggrieved party raised factual and legal issues, or a petition for review under Rule 45 if only questions of law are involved) and not a petition for certiorari under Rule 65 of the Rules of Court.[37] While the Supreme Court reiterated this rule in Mallari vs. Banco Filipino Savings & Mortgage Bank,[38] it also noted that a petition for certiorari may be allowed notwithstanding the availability of an appeal, such as: (a) when public welfare and the advancement of public policy dictate it; (b) when the broader interest of justice so requires; (c) when the writs issued are null; and (d) when the questioned order amounts to an oppressive exercise of judicial authority.[39]

On the other hand, there are cases[40] which state that the proper remedy is a separate, distinct and independent suit, provided for under Section 8 of Act No. 3135, which reads:

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 canceled, 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 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.

Under Section 8, Act No. 3135, the remedy of a party from the trial court's order granting the issuance of a writ of possession is to file a petition to set aside the sale and cancel the writ of possession, and the aggrieved party may then appeal from the order denying or granting said petition. This is the plain, speedy and adequate remedy envisioned in Rule 65 of the Rules of Court, and since petitioner could have availed himself of such procedure, he is not entitled to the remedy of certiorari.[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 No. 3135, as amended by Act No. 4118. Such question is not to be raised as a justification for opposing the issuance of the writ of possession, since, under the Act NO. 3135, the proceeding is ex parte.[42] Moreover, the pendency of a case for annulment of the foreclosure proceedings is not a bar to the issuance of the writ of possession.[43]

The law is clear that the purchaser must first be placed in possession. If the trial court later finds merit in the petition to set aside the writ of possession, it shall dispose the bond furnished by the purchaser in favor of the mortgagor. Thereafter, either party may appeal from the order of the judge. 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.[44]

Exceptions to the ministerial issuance of writ of possession

It is the ministerial duty of the cadastral court to issue a writ of possession in favor of the purchaser even during the redemption period, unless the case falls under the exceptions provided by law[45] and jurisprudence.[46] In other words, the rule on the ministerial duty of court to issue a writ of possession is not absolute.

When property in the possession of third party

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.[47] Under Section 33, Rule 39 of the Rules of Court, which is made to apply suppletorily to the extrajudicial foreclosure of real estate mortgages by Section 6, Act 3135, as amended, 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.[48] Section 33 provides:

Sec. 33. Deed and possession to be given at expiration of redemption period; by whom executed or given. - x x x
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)

For the exception to apply, the property need not only be possessed by a third party, but also held by the third party adversely to the judgment obligor.[49] The exception provided under Section 33 of Rule 39 of the Rules of Court contemplates a situation in which a third party holds the property by adverse title or right, such as that of a co-owner, tenant or usufructuary. The co-owner, agricultural tenant, and usufructuary possess the property in their own right, and they are not merely the successor or transferee of the right of possession of another co-owner or the owner of the property.[50]

The Supreme Court has uniformly 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.[51] The purchaser’s right of possession is recognized only as against the judgment debtor and his successor-in-interest but not against persons whose right of possession is adverse to the latter.[52]

The third party’s possession of the property is legally presumed to be based on a just title, a presumption which may be overcome by the purchaser in a judicial proceeding for recovery of the property. Through such a judicial proceeding, the nature of the adverse possession by the third party may be determined, after such third party is accorded due process and the opportunity to be heard. The third party may be ejected from the property only after he has been given an opportunity to be heard, conformably with the time-honored principle of due process.[53] The Civil Code protects the actual possessor of a property, as Article 433 thereof provides:

Art. 433. Actual possession under claim of ownership raises disputable presumption of ownership. The true owner must resort to judicial process for the recovery of the property.

One who claims to be the owner of a property possessed by another must bring the appropriate judicial action for its physical recovery. The "judicial process" could mean no less than an ejectment suit or a reivindicatory action, in which the ownership claims of the contending parties may be properly heard and adjudicated.[54]

The ex parte petition for the issuance of a writ of possession filed by respondent, strictly speaking, is not the kind of judicial process contemplated in Article 433 of the Civil Code. Even if the same may be considered a judicial proceeding for the enforcement of one’s right of possession as purchaser in a foreclosure sale, it is not an ordinary suit filed in court, by which one party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.[55]

Unlike a judicial foreclosure of real estate mortgage under Rule 68 of the Rules of Court where an action for foreclosure is filed before the RTC where the mortgaged property or any part thereof is situated, any property brought within the ambit of Act 3135 is foreclosed by the filing of a petition, not with any court of justice, but with the office of the sheriff of the province where the sale is to be made. As such, a third person in possession of an extrajudicially foreclosed property, who claims a right superior to that of the original mortgagor, is given no opportunity to be heard on his claim. It stands to reason, therefore, that such third person may not be dispossessed on the strength of a mere ex parte possessory writ, since to do so would be tantamount to his summary ejectment, in violation of the basic tenets of due process. The Supreme Court cannot sanction a procedural shortcut.[56]

Illustrative case: A third party

In the 2010 case of Villanueva vs. Cherdan Lending Investors Corporation,[57] the petitioner opposed the issuance of the writ of possession on the ground that he is in actual possession of the mortgaged property under a claim of ownership. He explained that his title to the property was cancelled by virtue of a falsified deed of donation executed in favor of the mortgagors. Because of this falsification, he filed civil and criminal cases against the mortgagors to nullify the deed of donation and to punish the party responsible for the falsified document. Petitioner’s claim that he is in actual possession of the property is not challenged, and he has come to court asserting an ownership right adverse to that of the mortgagors.[58] The Supreme Court held that to enforce the writ against petitioner, an unwitting third party possessor who took no part in the foreclosure proceedings, would amount to the taking of real property without the benefit of proper judicial intervention.[59] Hence, it was not a ministerial duty of the trial court under Act 3135 to issue a writ of possession for the ouster of petitioner from the subject lot, particularly in light of the latter’s opposition, claim of ownership and rightful possession of the disputed properties.[60]

Who are not considered third parties

The Supreme Court proceeded in Villanueva[61] to distinguish the case from Ancheta vs. Metropolitan Bank and Trust Company, Inc.[62] and PNB vs. Sanao Marketing Corporation.[63] Both Ancheta and PNB involved the propriety of the issuance of a writ of possession pending the determination of the validity of the mortgage or foreclosure proceedings filed by the mortgagor or by at least one of the mortgagors who was a party to the foreclosure proceedings. It was held that the pendency of such determination is not a bar to the issuance of the possessory writ as no discretion is left to the issuing judge. Unlike in Villanueva, the oppositors in Ancheta and PNB were parties to the mortgage and the foreclosure proceedings. In Villanueva, the oppositor was a third party who was a stranger to the mortgage and who did not participate in the foreclosure proceedings. Moreover, in Ancheta and PNB, the oppositors objected to the issuance of the writ because of the pendency of a case for the annulment of the real estate mortgage and the foreclosure proceedings; while the petitioner in Villanueva objected because he is in actual possession of the foreclosed property and he is claiming the right of ownership adverse to that of the mortgagor. In other words, the issuance of the possessory writ is not a ministerial duty of the judge.

Purchasers hold title to and possess the properties as debtor-mortgagor's transferees and any right they have over the properties is derived from the debtor-mortgagor. The transferees are the successors-in-interest of the debtor-mortgagor and the transferees' occupancy over the properties cannot be considered adverse to debtor-mortgagor.[64]

Those who are not claiming a right adverse to the judgment debtor cannot be considered as third parties. Thus, teachers and students who do not claim ownership of the properties, but merely averred actual "physical possession of the subject school premises," are not third parties.[65]

Duty of the court when a third party is present

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. Where such third party exists, the trial court should conduct a hearing to determine the nature of his adverse possession.[66] The case of Villanueva[67] originated from a motion for reconsideration from the order of the trial court issuing a writ of possession.

In an extrajudicial foreclosure of real property, when the foreclosed property is in the possession of a third party holding the same adversely to the judgment obligor, the issuance by the trial court of a writ of possession in favor of the purchaser of said real property ceases to be ministerial and may no longer be done ex parte.[68] The procedure is for the trial court to order a hearing to determine the nature of the adverse possession.[69]

Other exceptions

As a general rule, the issuance of a writ of possession is ministerial. Also, as a rule, mere inadequacy or surplus in the purchase price does not affect the purchaser’s entitlement to a writ of possession.[70] The failure to return the excess or surplus proceeds of the extrajudicial foreclosure sale does not convert the issuance of a writ of possession from a ministerial to a discretionary function of the trial court.[71] In case there is a surplus, the mortgagor is entitled to receive the same from the purchaser. The failure or refusal of the mortgagee-purchaser to return the surplus does not affect the validity of the sale but gives the mortgagor a cause of action against the mortgagee-purchaser.[72]

Nevertheless, in Sulit vs. Court of Appeals,[73] the Supreme Court withheld the issuance of the writ considering the peculiar circumstances prevailing in said case. In Sulit, the SC withheld the issuance of a writ of possession because the mortgagee failed to deliver the surplus from the proceeds of the foreclosure sale which is equivalent to approximately 40% of the total mortgage debt. Sulit was considered as an exception to the general rule that it is ministerial upon the court to issue a writ of possession even during the period of redemption. The SC explained that equitable considerations prevailing in said case demand that a writ of possession should not issue.[74] However, in the subsequent case of Saguan v. Philippine Bank of Communications,[75] the Supreme Court clarified that the exception made in Sulit does not apply when the period to redeem has already expired or when ownership over the property has already been consolidated in favor of the mortgagee-purchaser. In other words, even if the mortgagee-purchaser fails to return the surplus, a writ of possession must still be issued.[76] The failure of the mortgagee to deliver the surplus proceeds does not affect the validity of the foreclosure sale. It gives rise to a cause of action for the mortgagee to file an action to collect the surplus proceeds.[77]

In Barican, et al. vs. Intermediate Appellate Court, et al.,[78] the Supreme Court took into account the circumstances that long before the mortgagee bank had sold the disputed property, it was no longer the judgment debtor who was in possession but the petitioner spouses who had assumed the mortgage, and that there was a pending civil case involving the rights of third parties. Hence, it was ruled therein that under the circumstances, the obligation of a court to issue a writ of possession in favor of the purchaser in a foreclosure of mortgage case ceases to be ministerial.[79]

In certain cases,[80] the Supreme Court refused to consider the rules of equity, as equity, aptly described as "justice outside legality," is applied only in the absence of, and never against, statutory law or judicial rules of procedure. Equity is available only in the absence of law and not as its replacement.[81]


References

  1. Villanueva vs. Cherdan Lending Investors Corporation, G.R. No. 177881, 13 October 2010, citing Bank of the Philippine Islands vs. Icot, G.R. No. 168061, 12 October 2009, 603 SCRA 322, 329
  2. Philippine National Bank vs. Sanao Marketing Corporation, G.R. No. 153951, 29 July 2005, 465 SCRA 287, citing Black’s Law Dictionary, 6th ed., p. 1611
  3. Philippine National Bank vs. Sanao Marketing Corporation, G.R. No. 153951, 29 July 2005, 465 SCRA 287, citing Gatchalian vs. Arlegui, No-L-35615, 17 February 1977, 75 SCRA 234, 244
  4. Philippine National Bank vs. Sanao Marketing Corporation, G.R. No. 153951, 29 July 2005, 465 SCRA 287, citing Estipona vs. Navaro, No. L-41825, 30 January 1976, 69 SCRA 285, 291
  5. Philippine National Bank vs. Sanao Marketing Corporation, G.R. No. 153951, 29 July 2005, 465 SCRA 287, citing Spouses Ong v. Court of Appeals, 388 Phil. 857, 863-864 (2000)
  6. See, for instance, Philippine National Bank vs. Sanao Marketing Corporation, G.R. No. 153951, 29 July 2005, 465 SCRA 287, wherein the Supreme Court noted that the case of Cometa vs. Intermediate Appellate Court, No, L-69294, 30 June 1987, 151 SCRA 563, 567 does not apply. PNB involves a writ of possession in an extrajudicial foreclosure, while Cometa involves an execution sale to enforce a judgment.
  7. Bon-Mar Realty and Sport Corporation vs. Spouses De Guzman, G.R. Nos. 182136-37, 29 August 2008, citing Yu vs. Philippine Commenrcial International Bank, G.R. No. 147902, 17 March 2006, 485 SCRA 56, 71
  8. Bon-Mar Realty and Sport Corporation vs. Spouses De Guzman, G.R. Nos. 182136-37, 29 August 2008, citing Serra Serra v. Court of Appeals, G.R. Nos. 34080 & 34693, 22 March 1991, 195 SCRA 482, 491-492
  9. Guevara vs. Ramos, G.R. No. L-24358, 31 March 1971, citing Saavedra, et al. vs. Siari Valley Estates, Inc., et al., 106 Phil. 432, 436; Omaña vs. Gatulayao, 73 Phil. 66; Gozon vs. De la Rosa, 77 Phil. 919; Santiago vs. Sheriff of Manila, 77 Phil. 740
  10. G.R. No. L-24358, 31 March 1971
  11. Guevara vs. Ramos, G.R. No. L-24358, 31 March 1971
  12. Saguan vs. Philippine Bank of Communications, G.R. No. 159882, 23 November 2007
  13. The Parents-Teachers Association (PTA) of St. Mathew Christian Academy vs. Metropolitan Bank and Trust Co., G.R. No. 176518, 2 March 2010
  14. Section 7. Possession during redemption period. – 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 [the] form of an ex-parte motion in the registration or cadastral proceedings if the property is registered, or in special proceedings in 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 court shall, upon the filing of such petition, collect the fees specified in paragraph eleven of section one hundred and fourteen of Act Number Four hundred and ninety-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.
  15. The Parents-Teachers Association (PTA) of St. Mathew Christian Academy vs. Metropolitan Bank and Trust Co., G.R. No. 176518, 2 March 2010
  16. The Parents-Teachers Association (PTA) of St. Mathew Christian Academy vs. Metropolitan Bank and Trust Co., G.R. No. 176518, 2 March 2010, citing Idolor vs. Court of Appeals, 490 Phil 808, 816 (2005)
  17. The Parents-Teachers Association (PTA) of St. Mathew Christian Academy vs. Metropolitan Bank and Trust Co., G.R. No. 176518, 2 March 2010, citing Sagarbarria vs. Philippine Business Bank, G.R. No. 178330, 23 July 2009
  18. The Parents-Teachers Association (PTA) of St. Mathew Christian Academy vs. Metropolitan Bank and Trust Co., G.R. No. 176518, 2 March 2010
  19. Espiridion vs. Court of Appeals, G. R. No. 146933, 8 June 2006
  20. De Vera vs. Agloro, G.R. No. 155673, 14 January 2005, citing Samson vs. Rivera, et. al., G.R. No. 154355, 20 May 2004; See also BPI Family Savings Bank, Inc. vs. Golden Power Diesel Sales Center, Inc., G.R. No. 176019, 12 January 2011
  21. BPI Family Savings Bank, Inc. vs. Golden Power Diesel Sales Center, Inc., G.R. No. 176019, 12 January 2011
  22. BPI Family Savings Bank, Inc. vs. Golden Power Diesel Sales Center, Inc., G.R. No. 176019, 12 January 2011
  23. Villanueva vs. Cherdan Lending Investors Corporation, G.R. No. 177881, 13 October 2010, citing Bank of the Philippine Islands vs. Icot, G.R. No. 168061, 12 October 2009, 603 SCRA 322; See also Saguan vs. Philippine Bank of Communications, G.R. No. 159882, 23 November 2007, Philippine National Bank vs. Sanao Marketing Corporation, G.R. No. 153951, 29 July 2005, 465 SCRA 287
  24. The Parents-Teachers Association (PTA) of St. Mathew Christian Academy vs. Metropolitan Bank and Trust Co., G.R. No. 176518, 2 March 2010
  25. Saguan vs. Philippine Bank of Communications, G.R. No. 159882, 23 November 2007; See also Philippine National Bank vs. Sanao Marketing Corporation, G.R. No. 153951, 29 July 2005, 465 SCRA 287
  26. Espiridion vs. Court of Appeals, G. R. No. 146933, 8 June 2006
  27. Edmundo vs. Dizon, G.R. No. 183027, 26 July 2010
  28. Saguan vs. Philippine Bank of Communications, G.R. No. 159882, 23 November 2007
  29. Espiridion vs. Court of Appeals, G. R. No. 146933, 8 June 2006; See also Saguan vs. Philippine Bank of Communications, G.R. No. 159882, 23 November 2007
  30. The Parents-Teachers Association (PTA) of St. Mathew Christian Academy vs. Metropolitan Bank and Trust Co., G.R. No. 176518, 2 March 2010
  31. Villanueva vs. Cherdan Lending Investors Corporation, G.R. No. 177881, 13 October 2010, citing Bank of the Philippine Islands vs. Icot, G.R. No. 168061, 12 October 2009, 603 SCRA 322, 329, citing China Banking Corporation v. Lozada, G.R. No. 164919, July 4, 2008, 557 SCRA 177, 196
  32. Villanueva vs. Cherdan Lending Investors Corporation, G.R. No. 177881, 13 October 2010, citing Development Bank of the Philippines v. Prime Neighborhood Association, G.R. Nos. 175728 & 178914, 8 May 2009, 587 SCRA 582, 594
  33. Villanueva vs. Cherdan Lending Investors Corporation, G.R. No. 177881, 13 October 2010
  34. Villanueva vs. Cherdan Lending Investors Corporation, G.R. No. 177881, 13 October 2010
  35. Espiridion vs. Court of Appeals, G. R. No. 146933, 8 June 2006, and Saguan vs. Philippine Bank of Communications, G.R. No. 159882, 23 November 2007, 538 SCRA 390, both cases cited in Mallari vs. Banco Filipino Savings & Mortgage Bank, G.R. No. 157660, 29 August 2008
  36. Philippine National Bank vs. Sanao Marketing Corporation, G.R. No. 153951, 29 July 2005, 465 SCRA 287, citing Chailease Finance Corporation v. Ma, G.R. No. 151941, 15 August 2003, 409 SCRA 250
  37. The Parents-Teachers Association (PTA) of St. Mathew Christian Academy vs. Metropolitan Bank and Trust Co., G.R. No. 176518, 2 March 2010, citing Metropolitan Bank and Trust Company vs. Tan, G.R. No. 159934, 26 June 2008, 555 SCRA 502, 512, and Government Service Insurance System vs. Court of Appeals, 55 251 Phil. 222 (1989)
  38. G.R. No. 157660, 29 August 2008
  39. Mallari vs. Banco Filipino Savings & Mortgage Bank, G.R. No. 157660, 29 August 2008
  40. The Parents-Teachers Association (PTA) of St. Mathew Christian Academy vs. Metropolitan Bank and Trust Co., G.R. No. 176518, 2 March 2010, citing De Gracia vs. San Jose, 94 Phil 623, 625-626 (1954)
  41. Mallari vs. Banco Filipino Savings & Mortgage Bank, G.R. No. 157660, 29 August 2008, citing Green Asia Construction & Development Corp. v. Court of Appeals, G.R. No. 163735, 24 November 2006, 508 SCRA 79, 85
  42. Philippine National Bank vs. Sanao Marketing Corporation, G.R. No. 153951, 29 July 2005, 465 SCRA 287, citing Spouses Camacho vs. Philippine National Bank, 415 Phil. 581 (2001) and Samson vs. Rivera, G.R. No. 154355, 20 May 2004, 428 SCRA 759
  43. Philippine National Bank vs. Sanao Marketing Corporation, G.R. No. 153951, 29 July 2005, 465 SCRA 287, citing Idolor vs. Court of Appeals, G.R. No. 161028, 31 January 2005
  44. Philippine National Bank vs. Sanao Marketing Corporation, G.R. No. 153951, 29 July 2005, 465 SCRA 287, citing Spouses Ong vs. Court of Appeals, 388 Phil. 857(2000)
  45. Rules of Court, Rule 39, Section 33, which is made applicable to the extrajudicial foreclosure of real estate mortgages by Section 6 of Act 3135, per Metropolitan Bank & Trust Co. vs. Lamb Construction Consortium Corporation, G.R. No. 170906, 27 November 2009
  46. Metropolitan Bank & Trust Co. vs. Lamb Construction Consortium Corporation, G.R. No. 170906, 27 November 2009, citing Cometa v. Intermediate Appellate Court, 235 Phil. 569 (1987) and Sulit v. Court of Appeals, 335 Phil. 914 (1997)
  47. Barican vs. Intermediate Appellate Court, G.R. No. L-79906, 20 June 1988, 162 SCRA 358, 363, reiterated in Policarpio vs. Active Bank, G.R. No. 157125, 19 September 2008, 566 SCRA 27, 32, and cited in The Parents-Teachers Association (PTA) of St. Mathew Christian Academy vs. Metropolitan Bank and Trust Co., G.R. No. 176518, 2 March 2010
  48. Villanueva vs. Cherdan Lending Investors Corporation, G.R. No. 177881, 13 October 2010, citing Development Bank of the Philippines v. Prime Neighborhood Association, G.R. Nos. 175728 & 178914, 8 May 2009, 587 SCRA 582
  49. BPI Family Savings Bank, Inc. vs. Golden Power Diesel Sales Center, Inc., G.R. No. 176019, 12 January 2011
  50. China Banking Corporation v. Lozada, G.R. No. 164919, 4 July 2008, 557 SCRA 177, cited in BPI Family Savings Bank, Inc. vs. Golden Power Diesel Sales Center, Inc., G.R. No. 176019, 12 January 2011
  51. Villanueva vs. Cherdan Lending Investors Corporation, G.R. No. 177881, 13 October 2010, citing Bank of the Philippine Islands vs. Icot, G.R. No. 168061, 12 October 2009, Development Bank of the Philippines vs. Prime Neighborhood Association, G.R. Nos. 175728 & 178914, 8 May 2009, Dayot vs. Shell Chemical Company (Phils.), Inc., G.R. No. 156542, 26 January 2007, 525 SCRA 535, and Philippine National Bank vs. Court of Appeals, 424 Phil. 757 (2002)
  52. Villanueva vs. Cherdan Lending Investors Corporation, G.R. No. 177881, 13 October 2010, citing Bank of the Philippine Islands vs. Icot, G.R. No. 168061, 12 October 2009, 603 SCRA 322,333; Development Bank of the Philippines vs. Prime Neighborhood Association, G.R. Nos. 175728 & 178914, 8 May 2009, 587 SCRA 582, 597
  53. Villanueva vs. Cherdan Lending Investors Corporation, G.R. No. 177881, 13 October 2010, citing Development Bank of the Philippines vs. Prime Neighborhood Association, G.R. Nos. 175728 & 178914, 8 May 2009, 587 SCRA 582, 597
  54. Villanueva vs. Cherdan Lending Investors Corporation, G.R. No. 177881, 13 October 2010, citing Dayot vs. Shell Chemical Company (Phils.), Inc., G.R. No. 156542, 26 January 2007, 525 SCRA 535, 547
  55. Villanueva vs. Cherdan Lending Investors Corporation, G.R. No. 177881, 13 October 2010, citing citing Dayot vs. Shell Chemical Company (Phils.), Inc., G.R. No. 156542, 26 January 2007, 525 SCRA 535
  56. Villanueva vs. Cherdan Lending Investors Corporation, G.R. No. 177881, 13 October 2010, citing Dayot vs. Shell Chemical Company (Phils.), Inc., G.R. No. 156542, 26 January 2007, 525 SCRA 535
  57. G.R. No. 177881, 13 October 2010
  58. Villanueva vs. Cherdan Lending Investors Corporation, G.R. No. 177881, 13 October 2010
  59. Villanueva vs. Cherdan Lending Investors Corporation, G.R. No. 177881, 13 October 2010, citing Dayot vs. Shell Chemical Company (Phils.), Inc., G.R. No. 156542, 26 January 2007, 525 SCRA 535
  60. Villanueva vs. Cherdan Lending Investors Corporation, G.R. No. 177881, 13 October 2010, citing Dayot vs. Shell Chemical Company (Phils.), Inc., G.R. No. 156542, 26 January 2007, 525 SCRA 535
  61. G.R. No. 177881, 13 October 2010
  62. 507 Phil. 161 (2005)
  63. 503 Phil. 260 (2005)
  64. BPI Family Savings Bank, Inc. vs. Golden Power Diesel Sales Center, Inc., G.R. No. 176019, 12 January 2011
  65. The Parents-Teachers Association (PTA) of St. Mathew Christian Academy vs. Metropolitan Bank and Trust Co., G.R. No. 176518, 2 March 2010
  66. Barican vs. Intermediate Appellate Court, G.R. No. L-79906, 20 June 1988, 162 SCRA 358, 363, reiterated in Policarpio vs. Active Bank, G.R. No. 157125, 19 September 2008, 566 SCRA 27, 32, and cited in The Parents-Teachers Association (PTA) of St. Mathew Christian Academy vs. Metropolitan Bank and Trust Co., G.R. No. 176518, 2 March 2010
  67. G.R. No. 177881, 13 October 2010
  68. BPI Family Savings Bank, Inc. vs. Golden Power Diesel Sales Center, Inc., G.R. No. 176019, 12 January 2011, citing Philippine National Bank vs. Court of Appeals, 424 Phil. 757 (2002)
  69. BPI Family Savings Bank, Inc. vs. Golden Power Diesel Sales Center, Inc., G.R. No. 176019, 12 January 2011, citing Unchuan vs. Court of Appeals, 244 Phil. 733 (1988)
  70. Metropolitan Bank & Trust Co. vs. Lamb Construction Consortium Corporation, G.R. No. 170906, 27 November 2009
  71. Saguan vs. Philippine Bank of Communications, G.R. No. 159882, 23 November 2007
  72. Metropolitan Bank & Trust Co. vs. Lamb Construction Consortium Corporation, G.R. No. 170906, 27 November 2009
  73. 335 Phil. 914 (1997)
  74. As summarized in Metropolitan Bank & Trust Co. vs. Lamb Construction Consortium Corporation, G.R. No. 170906, 27 November 2009
  75. G.R. No. 159882, 23 November 2007, 538 SCRA 390
  76. As summarized and applied in Metropolitan Bank & Trust Co. vs. Lamb Construction Consortium Corporation, G.R. No. 170906, 27 November 2009
  77. Metropolitan Bank & Trust Co. vs. Lamb Construction Consortium Corporation, G.R. No. 170906, 27 November 2009
  78. G.R. No. 79906, 20 June 1988
  79. As summarized in Metropolitan Bank & Trust Co. vs. Lamb Construction Consortium Corporation, G.R. No. 170906, 27 November 2009
  80. See The Parents-Teachers Association (PTA) of St. Mathew Christian Academy vs. Metropolitan Bank and Trust Co., G.R. No. 176518, 2 March 2010
  81. See The Parents-Teachers Association (PTA) of St. Mathew Christian Academy vs. Metropolitan Bank and Trust Co., G.R. No. 176518, 2 March 2010
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