Tuesday, February 11, 2014

Redemption period; writ of possession - G.R. No. 167998

See - G.R. No. 167998

"x x x.

Essential to note, the injunction granted by the Makati RTC and upheld by this Court mainly enjoined respondent from consolidating its title over the foreclosed property.  It is not correct for petitioner to assume that the injunction also prohibits respondent from taking possession of the 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.[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]

          Under said provision, the writ of possession may be issued to the purchaser in a foreclosure sale either within the one-year redemption period upon the filing of a bond, or after the lapse of the redemption period, without need of a bond.[22]

          We have consistently held that the duty of the trial court to grant a writ of possession is ministerial.  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.  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[23] of Act No. 3135.  Such question cannot be raised to oppose the issuance of the writ, since the proceeding is ex parte.  The recourse is available even before the expiration of the redemption period provided by law and the Rules of Court.[24]

          To emphasize the writ’s ministerial character, we have in previous cases disallowed injunction to prohibit its issuance, just as we have held that issuance of the same may not be stayed by a pending action for annulment of mortgage or the foreclosure itself.[25]

          A writ of possession may also be issued after consolidation of ownership of the property in the name of the purchaser.  It is settled that the buyer in a foreclosure sale becomes the absolute owner of the property purchased if it is not redeemed during the period of one year after the registration of sale. Hence, he is entitled to the possession of the property and can demand it at any time following the consolidation of ownership in his name and the issuance to him of a new transfer certificate of title.  In such a case, the bond required in Section 7 of Act No. 3135 is no longer necessary.  Possession of the land then becomes an absolute right of the purchaser as confirmed owner.  Upon proper application and proof of title, the issuance of the writ of possession becomes a ministerial duty of the court.[26]
          Inasmuch as respondent was enjoined to consolidate its title over the foreclosed property, possession thereof did not become an absolute right of respondent.  The temporary restraining order issued on March 13, 2000 and the writ of injunction that followed effectively halted the tolling of the redemption period three days short of its expiration.[27]

Nonetheless, respondent, as the purchaser in the foreclosure sale, may apply for a writ of possession during the redemption period.  In fact, it did apply for a writ on December 27, 1999, wellwithin the redemption period.  The San Fernando RTC, given its ministerial duty to issue the writ, therefore, should have acted on the ex parte petition.  The injunction order is of no moment because it should be understood to have merely stayed the consolidation of title.  As previously stated, an injunction is not allowed to prohibit the issuance of a writ of possession.  Neither does the pending case for annulment of foreclosure sale, mortgage contract, promissory notes and damages stay the issuance of said writ.
x x x."