Ministerial

Can a writ of possession of a mortgaged property that has been foreclosed be denied because of questions on the validity of the mortgage or its foreclosure and sale? This is the issue raised in this case of the brothers Tony and Jim.

Tony and Jim are owners of two parcels of land covered by TCT Nos. 79865 and 79866 located at San Francisco del Monte QC which they mortgaged to a bank (PDB) to secure the various loans they obtained totaling P25 million. Since they failed to pay their obligation on due date, PDB instituted an extrajudicial foreclosure sale of the lands before a Notary Public. Notices of scheduled sale of said properties were posted at the main building of the Hall of Justice in QC and published in a newspaper of general circulation in QC once a week for three consecutive weeks.

On the scheduled date of foreclosure PBD emerged as the highest bidder, so a Certificate of Sale was issued in its favor and registered with the Register of Deeds on May 19, 1999. Since Tony and Jim failed to redeem the property within the one year period, PDB filed a petition for a writ of possession before the Regional Trial Court (RTC) Branch 77.

In the meantime Jim and Tony also filed an action for annulment of the certificate of sale, Promissory Note and Deed of Mortgage before RTC Branch 221 which issued a writ of preliminary injunction on June 14, 2000 restraining PDB from consolidating title to the property and committing any act of disposition that would defeat the brothers’ right of ownership.

On the other hand, after numerous incidents arising from PDB’s petition for writ of possession, and after the bank was finally allowed to present its evidence ex-parte, RTC Branch 77 finally issued an order dated January 19, 2009, denying the writ of possession because of lack of proof that notices of foreclosure sale were duly posted, irregularity in the conduct of sale by the Notary Public which should have been filed and conducted by the Ex-Officio Sheriff of the Executive Judge and lack of approval of the certificate of sale by said Judge.

PDB questioned the said ruling of RTC Br. 77. It contended that said court cannot cite as ground for denial of the writ of possession, questions relating to the validity of the mortgage or its foreclosure. Was PDB correct?

Yes. Since Tony and Jim failed to redeem the property foreclosed within the reglementary period, entitlement to the writ of possession becomes a matter of right and the issuance thereof is merely a ministerial function. 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. Questions regarding the validity of a mortgage or its foreclosure as well as the sale of the property covered by the mortgage cannot be raised as grounds to deny the writ of possession. Any such questions must be determined in a subsequent proceeding. In fact Tony and Jim already commenced an action for the annulment of the certificate of sale, promissory note and deed of mortgage. Until the foreclosure sale is annulled, the issuance of the writ of possession is ministerial (Planters Development Bank vs. Ng, G.R. 187556, May 5, 2010).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

*      *      *

E-mail at: [email protected]