Act No. 3135 governs the procedure for extrajudicial foreclosure of real estate mortgages. In case the real property is sold after foreclosure, the mortgagor or junior lienholder has a right of redemption within one year from the registration of the foreclosure sale.
The rule is that the mortgagor is entitled to the possession of the mortgaged property during the redemption period. The purchaser at the foreclosure sale may however file with the regional trial court where the property is situated a petition for issuance of writ of possession, furnishing bond in an amount equal to the use of the property for twelve months, to indemnify the mortgagor in case the sale was made without any violation of the mortgage or without complying with the requirements of Act No. 3135. The petition shall be under oath and in the form of an ex parte motion. The court shall, upon approval of the bond, order that a writ of possession issue, addressed to the sheriff, who shall execute said order immediately.
After the lapse of the redemption period, the purchaser who cannot take possession because of the adverse possession of the mortgagor or a third person may file an ex parte motion for the issuance writ of possession, without need of posting a bond. The reason is that the purchaser is already entitled to possession as a matter of right because ownership of the property has vested in him (IFC Service Leasing & Acceptance Corporation v. Nera, 30 January 1967; Hernandez v. Ocampo, 15 August 2016). There is no need for the purchaser to file a separate and independent action to obtain possession of the property (Tan Soo Huat v. Ongkiko, 63 Phil. 746 [1936]). The purchaser at the public auction only has to file a motion for the issuance of a writ of possession pursuant to Act No. 3135.
The issuance of a writ of possession in favor of the purchaser is a ministerial duty of the court. The mortgagor does not need to be impleaded in or notified of the proceedings which are ex parte (Gatuslao v. Yanson, 21 January 2015, Del Castillo, J.). Section 7 of Act No. 3135 is an ex parte judicial proceeding brought for the benefit of only one party and without notice to or consent by any person adversely affected; it is a proceeding wherein relief is granted without an opportunity for the person against whom the relief is sought to be heard (Metrobank v. Abad Santos, 15 December 2009, Brion, J.).
A line of cases has however held that the court’s obligation to issue an ex parte writ of possession in favor of the purchaser ceases to be ministerial where a third party is claiming the property adversely to that of the mortgagor. Jurisprudence has held that the last paragraph of Section 33, Rule 39 of the Rules of Court, which provides that possession of the property shall be given to the purchaser unless a third party is actually holding the property adversely to the judgment obligor, may be extended to extrajudicial foreclosure pursuant to Section 6 of Act No. 3135 (Cabling v. Lumapas, 18 June 2014; Sy v. China Bank, 17 June 2020).
It is submitted that this holding deserves to be re-examined. The incorporation by reference of the last paragraph of Section 33, Rule 39 to Act No. 3135 is not supported by the text of Section 6 of Act No. 3135. Said section reads as follows:
“Sec. 6. 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.” (Emphases supplied).
Section 6 of Act No. 3135, which refers to the mortgagor’s or junior lienholder’s right of redemption, states only that such redemption shall be governed by the provisions of Sections 464 to 466 of the Code of Civil Procedure. Otherwise put, Section 6 refers only to the mortgagor’s or junior lienholder’s right of redemption. It does not pertain to the purchaser’s right to be given possession which is governed by Section 7 and which provides that the writ of possession shall issue ex parte and shall be enforced immediately by the sheriff. Act No. 3135 could not have meant to adopt the provision withholding possession when there is a third-party adverse possessor since that would be inconsistent with the ex parte nature of the motion for issuance of a writ of possession under Section 7 of Act No. 3135.
Some of the cases which hold that the issuance of the writ of possession ceases to be ministerial when there is a third-party adverse possessor also cite Article 433 of the Civil Code as protecting the adverse possessor:
“ART. 433. 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.”
What these cases overlook is that the petition for the issuance of a writ of possession is itself a judicial process for the recovery of possession of property. Restricting the meaning of “judicial process” to an action for ejectment or an action for recovery of possession or ownership ignores the fact that the very purpose of a petition for a writ of possession is to relieve the purchaser of the need to file a separate and independent action to obtain possession of the property.
The right to due process of the third-party adverse possessors would not be impaired by the ex parte issuance of the writ of possession since they have the right to protect their interests in a separate civil action. They should not however be allowed to oppose the issuance of a writ of possession and demand a hearing, even a summary one, for that would go against the ex parte and ministerial nature of the issuance of the writ as expressly provided for in Act No. 3135.
The application of the last paragraph of Section 33, Rule 39 of the Rules of Court to a petition for writ of possession under Act No. 3135 has debased the writ and turned it to a pseudo-writ, one which can be easily neutralized by third parties by simply crying “adverse possession.” It is time to restore the lost vigor of a writ of possession so that purchasers at foreclosure sales can immediately take possession of the property they had acquired.
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