A matter of right

When is a purchaser at a foreclosure sale of real property entitled to the possession of said property? This is the question answered in this case of Dolly.

Dolly mortgage her property covered by TCT No. 25659 to secure payment of a loan she obtained from the spouses Garcia. When she failed to pay her loan, the spouses foreclosed the mortgage extra-judicially and emerged as the highest bidder in the foreclosure sale. Accordingly, a certificate of sale was issued in their favor.

Dolly however questioned the foreclosure by filling a complaint with the Regional Trial Court (RTC) for the annulment of the certificate of sale with a prayer for a temporary restraining order and a writ of preliminary injunction. The RTC granted the injunction but the Court of Appeals (CA) and subsequently, the Supreme Court, lifted the writ of injunction by annulling the order of the RTC granting it.

By this time, the ownership of Dolly’s property had been consolidated in favor of the Garcias in view of Dolly’s failure to redeem after the lapse of the one year period of redemption. So the Garcias asked the RTC for a writ of possession of the property. But the RTC denied their motion. According to the RTC, the lifting of the writ of injunction does not by itself entitle the spouses to a writ of possession over the property since the case for the annulment of the Certificate of Sale is still pending. It only allows the Sheriff to issue a final deed and confirmation of sale in their favor and for them to consolidate ownership/title over the subject property in their name. Was the RTC correct?

No. The pendency of the case for annulment of the Certificate of Sale is not a bar to the issuance of the writ of possession. Upon the filing of the motion, the trial court has no discretion to deny the same. The judge need not look into the validity of the mortgage or the manner of its foreclosure. As a rule, after consolidation of the 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.

As such the court neither exercises its official discretion nor judgment. 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.

Even before the consolidation of the title in the buyer’s name such writ issues as matter of course upon the filing of the proper ex parte motion or petition and approval of the corresponding bond. Such motion or petition is not, strictly speaking a "judicial process" or an ordinary suit filed in court by which one party sues another for the enforcement of a right or the prevention or redress of a wrong. It is a non-litigious proceeding and summary in nature as well such that even the rigid and technical application of the rules on legal fees for its filing may be relaxed in order to avoid manifest injustice to the buyer (Idolor vs. Court of Appeals et. al. G.R. 161028, January 31, 2005).

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