LIBRADA M. AQUINO, PETITIONER, V. BANK OF THE PHILIPPINE ISLANDS, THE PRESIDING JUDGE RTC OF QUEZON CITY, BRANCH 96, AND SHERIFF RAMON P. VILLANUEVA, RESPONDENTS.
ELBINIAS, J.:
The antecedent facts are as follows:
Petitioner Librada M. Aquino (“petitioner Librada” for brevity) is the petitioner in CA-G.R. SP No. 97013. On the other hand, the children of petitioner Librada – petitioners Christian Aquino, Christine Aquino-Yap, Jennifer Levi Aquino, and Brian Jeremy Francis Aquino (“petitioners Christian, et. al.” for brevity) – are the petitioners in CA-G.R. SP No. 100436.
The antecedent facts are as follows:
On August 7, 2002, private respondent Bank of the Philippine Islands (“private respondent BPI” for brevity) filed before respondent court an “EX-PARTE PETITION FOR WRIT OF POSSESSION”[7] (“Petition for Writ of Possession” for brevity) over several parcels of land. The other salient facts are those as stated in respondent court’s Order[8] dated January 7, 2004, to wit:
“The hearing on the petition was set on January 10, 2003 where all interested parties were notified at their given addresses of the date and time of hearing and to show cause why the petition should not be granted. The hearing was reset to February 6, 2003, and finally on February 13, 2003 for the presentation of petitioner’s (private respondent BPI here) evidence. Meanwhile, the mortgagors filed a Motion to Suspend Proceedings and thereafter an Opposition to the petition and a Motion for Consolidation.
The Court, in its Order dated May 20, 2003, denied the mortgagors’ Opposition or Motion for Consolidation. The Motion for Reconsideration filed by the mortgagors on June 2, 2003 was likewise denied in October 14, 2003.
During the ex-parte presentation of evidence on February 13, 2003, petitioner presented Marlene Loanzon, business manager of [Bank of Philippine Islands] xxx:
xxx she came across the records of the mortgagors spouses Ernesto and Agnes Aure; that said mortgagors were granted a loan secured by real estate mortgage in favor of the petitioner over six (6) parcels of land and all the improvements thereon, all situated in Quezon City covered by TCT Nos. N-160646, N-160645, 46609, N-167345[,] N- 156802, and N-161503; that the mortgagors defaulted in the payment of their obligation; that the obligation remained unpaid despite demand; xxx a petition for foreclosure of mortgage was filed before the Office of the Ex-Officio Sheriff of the Regional Trial Court of Quezon City; that after notice, posting and publication, the mortgage was foreclosed and the properties were sold at an auction sale held on January 5, 1998 at the Quezon City Hall of Justice wherein the petitioner was the highest bidder; that a Certificate of Sale dated January 5, 1998 xxx was issued and the same was registered with the Registry of Deeds for Quezon City; that after the mortgagors failed to redeem the properties, the petitioner executed an affidavit of consolidation of ownership xxx and registered the same with the Registry of Deeds of Quezon City and the latter issued in favor of petitioner TCT Nos. N-201773, N-201774, N-201775, N-201776, N- 201777, and N-201778 xxx; that demands were made on the mortgagors to turn over the properties to the petitioner but the same went unheeded and petitioner was constrained to file this petition.”[9] (Emphasis supplied)
On January 7, 2004, respondent court issued an Order[10] granting private respondent BPI’s Petition for Writ of Possession[11]. The dispositive portion of the Order read as follows:
“ACCORDINGLY, therefore, the petition for issuance of Writ of Possession is hereby GRANTED. The Deputy Sheriff of this Court is hereby commanded to place petitioner in possession of the properties subject of this petition.
SO ORDERED.”[12]
Petitioner Librada then filed a “MOTION FOR RECONSIDERATION [Of Order Dated January 7, 2004, Directing Issuance of Writ of Possession] [TO SERVE AS THIRD-PARTY CLAIM]”[13] (“Motion for Reconsideration” for brevity) of the Order[14] dated January 7, 2004. Petitioner Librada alleged that she was the owner and possessor[15] of the parcels of land covered by Transfer Certificates of Title (TCT) Nos. 201778 and 210776 (“subject properties” for brevity), which properties in turn were among those subject of the Writ of Possession granted to private respondent BPI.
On March 20, 2006, respondent court issued an Order[16] which granted petitioner Librada’s Motion for Reconsideration[17], and which ordered the exclusion of the subject properties from the coverage of the Writ of Possession. The dispositive portion of the Order[18] stated:
“ACCORDINGLY, the Order dated January 7, 2004 is hereby MODIFIED, to exclude the properties alleged in possession of Librada Aquino covered by TCT Nos. N-201776 and N- 201778, xxx, subject to the outcome of their respective cases filed against the debtors/mortgagors and the petitioner herein.
Let an Amended Writ of Possession be issued against TCT Nos. N-201774, N-201775 and N-201777. The Deputy Sheriff of this Court is hereby commanded to immediately place petitioner in possession of the said properties without further delay.
SO ORDERED.”[19] (Emphasis supplied)
However, upon private respondent BPI’s “MOTION FOR PARTIAL RECONSIDERATION“[20], respondent court issued the assailed Order[21] dated November 6, 2006 which partially reconsidered its Order[22] of March 20, 2006, by directing, among others, the inclusion of the subject properties as subject of the Writ of Possession. The dispositive portion of the Order stated:
“WHEREFORE, the Order dated March 20, 2006, is hereby partially reconsidered to include the properties of Librada Aquino as subject of the Writ of Possession.
Let therefore a Second (2nd) Amended Writ of Possession be issued commanding the Deputy Sheriff of this court to immediately place petitioner Bank of the Philippine Islands in possession of the properties covered by Transfer Certificate of title Nos. 201776 and 201778.
SO ORDERED.”[23] (Emphasis supplied)
Subsequently, respondent Branch Clerk of Court Atty. Mary Dela Cruz (“respondent Clerk of Court” for brevity) issued a “2nd A[M]ENDED WRIT OF POSSESSION”[24] (“ex parte Writ of Possession” for brevity) dated November 16, 2006 which directed respondent Deputy Sheriff Ramon Villanueva (“respondent Sheriff” for brevity) to implement such ex parte Writ of Possession[25] against the “occupants as well as all persons acting in the name of the mortgagor LIBRADA AQUINO, or any persons claiming rights under [her]”[26].
Consequently, respondent Sheriff issued the assailed “NOTICE TO VACATE”[27] dated November 24, 2006 against petitioner Librada “and all persons claiming rights under [her]”[28]. Petitioner Librada then filed the Petition for Certiorari[29] docketed as CA-G.R. SP No. 97013, which prayed that “judgment be rendered setting aside the assailed Order of November 6, 2006 and the Notice to Vacate dated November 26, 2006.”[30]
Meanwhile, on January 5, 2007, petitioners Christian, et al. filed before respondent court a “MOTION FOR CLARIFICATORY ORDER“[31] alleging that they were co-owners and possessors[32] of the subject properties. Petitioners Christian, et al. claimed that they should be excluded from the operation of the ex parte Writ of Possession[33] and of respondent Sheriff’s “NOTICE TO VACATE”[34] dated November 24, 2006.
After petitioners Christian, et. al.’s “MOTION FOR CLARIFICATORY ORDER “[35] was denied by respondent court in its other assailed Order[36] dated July 23, 2007, petitioners Christian, et. al. filed their separate Petition for Certiorari[37] docketed as CA-G.R. SP No. 100436, which prayed for the following:
“WHEREFORE, premises considered, it is most respectfully prayed of this Honorable court to:
1. After hearing, issue a writ of preliminary mandatory injunction directing the restoration of petitioners to their original status as possessors of their properties covered by TCT Nos. 210778 and 210776 during the pendency of the petition.
2. After due notice and hearing, render judgment setting aside and nullifying the following:
2.1 The November 6, 2006 Order in so far as the properties of the petitioners are concerned;
2.2 The November 16, 2006 2nd Amended Writ of Possession ;
2.3 The November 24, 2006 Notice to Vacate ;
2.4 The July 23, 2007 Order;
3. Direct that the injunction be permanent.
Petitioners pray for such other relief and remedies equitable and appropriate under the law. xxx”[38]
On April 16, 2009, a Resolution[39] was issued by this Court which ordered the consolidation of petitioners Christian, et. al.’s Petition for Certiorari[40], docketed as CA-G.R. SP No. 100436, with petitioner Librada’s Petition for Certiorari[41], docketed as CA-G.R. SP No. 97013.
Petitioner Librada, in her Petition for Certiorari[42], raised this sole ground:
“RESPONDENT TRIAL COURT COMMITTED GRAVE ABUSE OF DISCRETION, WHEN IT REVERSED ITS EARLIER ORDER OF MARCH 20, 2006, EXCLUDING THE HEREIN PETITIONER FROM THE WRIT OF POSSESSION, AS THE PETITIONER IS CLEARLY COVERED BY THE DECISION OF THE SUPREME COURT IN PNB VS. CA, 374 SCRA 222 WHICH IS AT ALL FOURS WITH THE CASE AT BAR, HENCE EJECTING THE HEREIN PETITIONER AT THIS TIME IS VIOLATIVE OF HER RIGHT TO DUE PROCESS.”[43] (Emphasis supplied)
For their part, petitioners Christian, et al. raised the following grounds in their Petition for Certiorari[44]:
“PUBLIC RESPONDENT PRESIDING JUDGE OF RTC 96 QUEZON CITY COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN HE ISSUED THE NOVEMBER 6, 2006 AND JULY 23, 2007 ORDERS.
PUBLIC RESPONDENT BRANCH CLERK OF COURT RTC 96 QUEZON CITY COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN SHE ISSUED THE NOVEMBER 16, 2006 AND AMENDED WRIT OF POSSESSION.
PUBLIC RESPONDENT DEPUTY SHERIFF OF RTC 96 QUEZON CITY COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN HE ISSUED THE NOVEMBER 24, 2006 NOTICE TO VACATE.“[45] (Emphasis made in the original)
As properly raised by petitioner Librada in her sole ground and by petitioners Christian, et al. in their first assigned ground, a Writ of Possession could not be issued ex parte over the subject properties.
In concluding that petitioner Librada could not be excluded from the coverage of the ex parte Writ of Possession[46] issued in favor of private respondent BPI, respondent court ruled as follows:
“In the instant case, oppositor [Librada] Aquino cannot feign innocence nor a third party adversely possessing the property against the mortgagor Aure as she (Aquino) is deemed to be technically a party to the execution of the mortgage, if not in cohort with mortgagor Aure to perpetuate fraud against herein petitioner. [Librada] Aquino could not claim to be ignorant of the execution mortgage on her properties in favor of the petitioner, because she personally and voluntarily executed the Deed of Absolute Sale over her properties to give way for mortgagor Aure to mortgage her properties to the petitioner. Aquino could not therefore deny this authority as against the petitioner, the highest bidder in the auction sale, and a mortgagee in good faith and for value. Apparently, gleaned from the record, the controversy should be limited between Aquino and mortgagor Aure, as there seems to be a misunderstanding about the proceeds of the mortgage from which, petitioner had no knowledge whatsoever.”[47]
For their part, as to the inclusion of petitioners Christian, et al. to the coverage of the ex parte Writ of Possession[48], respondent court stated the following:
“After a careful and judicious consideration of the respective preposition of the parties, the Court finds no legal and factual basis to exclude the movants (petitioners Christian et al. here) herein from the coverage of the writ of possession. While movants herein claimed to be co-owners of the property subject of the writ of possession, they are in fact merely successors-in-interests of the late Manuel R. Aquino. As such, they merely stepped into the shoes of their predecessor-in-interest and did not acquire letter rights thereto.
Movants likewise claimed that they were not privy to this instant case, needless to state, as persons claiming rights thru their predecessors-in-interest, they became impliedly a mandatory and voluntary party hereto. Lest it be forgotten, that after the expiration of the one-year period without redemption being effected by the property owner, the right of the purchase[r] to the possession of the foreclosed property becomes absolute. The duty of the trial court to grant a writ of possession is ministerial and such issues as a matter of course upon the filing of the proper motion.”[49]
Contrary to the findings of respondent court however, is that, as is the settled rule, the issuance of a Writ of Possession “may no longer be done ex parte” if the foreclosed property is in the possession of a third party holding such property adversely to the defaulting debtor or mortgagor.[50]
Here, petitioners Christian, et al. were possessing the subject properties adversely to the mortgagors Spouses Ernesto and Agnes Aure (“mortgagors” for brevity), who allegedly purchased the subject properties from petitioner Librada. This is because petitioners Christian, et al., in their “MOTION FOR CLARIFICATORY ORDER “[51], claimed that they were “copossessors” and “co-owners” of the subject properties[52], and that they “were not made parties in the instant case nor were they informed of the proceedings that transpired therein”[53]. Consequently, petitioners Christian, et al.’s possession of the properties as co-owners was adverse to the mortgagors.
That this is the situation is pursuant to the pronouncement of the Supreme Court in Cesar V. Madriaga, Jr. vs. China Banking Corporation, G.R. No. 192377, July 25, 2012, as follows:
“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 defaulting debtor/mortgagor, the issuance by the RTC of a writ of possession in favor of the purchaser of the said real property ceases to be ministerial and may no longer be done ex parte. For the exception to apply, however, the property need not only be possessed by a third-party, but also held by the third-party adversely to the debtor/mortgagor.
In BPI Family Savings Bank, Inc. v. Golden Power Diesel Sales Center, Inc., the Court discussed the meaning of a ‘third-party who is actually holding the property adversely to the judgment obligor’ –
‘The exception provided under Section 33 of Rule 39 of the Revised 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‘.” (Emphasis Supplied)
Moreover, contrary to the conclusions of respondent court, petitioners Christian, et al., were third persons who were claiming a right superior to that of the mortgagors. This is so, considering that petitioners Christian, et al., did not acquire their title and possession of the subject properties from the mortgagors, but from their deceased father, Manuel Aquino, who died before petitioners Christian, et al.’s mother, petitioner Librada, allegedly sold the subject properties to the mortgagors. Thus, petitioners Christian, et al. stood in the same position as a stranger or a third person whose rights to the property could not be resolved in an ex parte proceeding, and where they were not impleaded. That this is the consequence is in accordance with the following pronouncement of the Supreme Court in Development Bank of the Philippines vs. Prime Neighborhood Association, G.R. Nos. 175728 & 178914, May 8, 2009:
“In its petition for certiorari in CA-G.R. No. SP No. 85870, PNA claims that it is the owner of the property in dispute as it purchased it from its true owner, and that the title to the property upon which Y Electric and DBP base their claim is fictitious and non-existent. In exercise of its right of ownership, PNA filed an ejectment case against DBP which is now on appeal with the RTC of Quezon City. There is nothing in the records that would show that PNA derives its claim of ownership from Y Electric or from Y Electric’s predecessors-in-interest, or that PNA is a successor-in-interest or transferee of Y Electric’s rights. It is thus clear that PNA asserts a claim of ownership adverse to that of Y Electric and DBP, and that it acquired title and possession of the property by virtue of a title entirely distinct from that through which DBP claims. PNA thus stands in the same position as a stranger or third party whose rights to the property cannot be resolved in an ex parte proceeding where it was not impleaded or where it could appear to present its side.” (Emphasis Supplied)
Given that third parties were in the possession of the subject properties and were claiming rights adverse to the mortgagors, then, the proper remedy of private respondent BPI was to file the appropriate judicial action for the recovery of the possession of the subject properties in which the claims of petitioners Librada and Christian, et al. could be properly heard and adjudicated. This being the proper remedy was as similarly declared by the Supreme Court in Development Bank of the Philippines vs. Prime Neighborhood Association, G.R. Nos. 175728 & 178914, May 8, 2009, to wit:
“It is ministerial upon the court to issue a writ of possession after the foreclosure sale and during the period of redemption. xxx
But the rule is not without exception. Under Section 35, Rule 39 of the Rules of Court, which is made suppletory to the extrajudicial foreclosure of real estate mortgages by Section 6 of 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. Thus, in the cited case of Philippine National Bank v. Court of Appeals, the Court held that the obligation of a 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. This is substantiated by the Civil Code which protects the actual possessor of a property. The discussion in Philippine National Bank on this matter is informative:
Under [Article 433 of the Civil Code], one who claims to be the owner of a property possessed by another must bring the appropriate judicial action for its physical recovery. The term ‘judicial process’ could mean no less than an ejectment suit or reivindicatory action in which ownership claims of the contending parties may be properly heard and adjudicated.
An ex parte petition for issuance of a possessory writ under Section 7 of Act 3135[, as amended,] is not, strictly speaking, a ‘judicial process’ as contemplated above. xxx
xxx
As such, a third person in possession of an extrajudicially foreclosed realty, who claims a right superior to that of the original mortgagor, will have no opportunity to be heard on his claim in a proceeding of this nature. 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.
Besides, as earlier stressed, Article 433 of the Civil Code, cited above, requires nothing less that an action for ejectment to be brought even by the true owner. After all, the actual possessor of a property enjoys a legal presumption of just title in his favor, which must be overcome by the party claiming otherwise.” (Emphasis Supplied)
Necessarily ensuing from all of these is that, as was properly argued by petitioners Christian, et al. in their second and third assigned grounds, the ex parte Writ of Possession[54] dated November 16, 2006 issued by respondent Clerk of Court, and the “NOTICE TO VACATE”[55] dated November 24, 2006 issued by respondent Sheriff could not be properly implemented against petitioners Librada and Christian Aquino, et al., who were in possession of the subject properties.
Thus, after careful consideration of all the facts, arguments, and issues appearing on the records, as well as of the pertinent laws and jurisprudence, and, in accordance with what is best determined to be proper under the circumstances, the following disposition is made on these matters.
WHEREFORE, the Petitions (CA-G.R. SP No. 97013 and CA-G. R. SP No. 100436) are GRANTED. Accordingly, respondent court’s assailed Orders[56] and respondent Sheriff’s “NOTICE TO VACATE”[57] are SET ASIDE and declared NULL and VOID[58].
SO ORDERED.
Tolentino[*] (Acting Chairperson), and Dicdican, JJ., concur.
[*] New member vice Justice Victoria Isabel A. Paredes (inhibited) per raffle dated March 11, 2014
[1] CA-G.R. SP No. 97013, Rollo, pp. 2-17; CA-G.R. SP No. 100436, Rollo, pp. 2-38
[2] CA-G.R. SP No. 97013, Rollo, pp. 20-22; CA-G.R. SP No. 100436, Rollo, pp. 41-43
[3] CA-G.R. SP No. 97013, Rollo, p.18 : CA-G.R. SP No. 100436, Rollo, p. 45
[4] CA-G.R. SP No. 100436, Rollo, pp. 2-38
[5] CA-G.R SP No. 100436, Rollo, pp. 46-47
[6] CA-G.R. SP No. 100436, Rollo, pp. 46-47
[7] CA-G.R. SP No. 97013, Rollo, pp. 103-107
[8] CA-G.R. SP No. 97013, Rollo, pp. 34-35
[9] CA-G.R. SP No. 97013, Rollo, pp. 34-35
[10] CA-G.R. SP No. 97013, Rollo, pp. 34-35
[11] CA-G.R. SP No. 97013, Rollo, pp. 103-107
[12] CA-G.R. SP No. 97013, Rollo, p. 35
[13] CA-G.R. SP No. 97013, Rollo, pp. 36-41
[14] CA-G.R. SP No. 97013, Rollo, pp. 34-35
[15] CA-G.R. SP No. 97013, Rollo, p. 36
[16] CA-G.R. SP No. 97013, Rollo, pp. 119-121
[17] CA-G.R. SP No. 97013, Rollo, pp. 36-41
[18] CA-G.R. SP No. 97013, Rollo, pp. 119-121
[19] CA-G.R. SP No. 97013, Rollo, p. 120
[20] CA-G.R. SP No. 97013, Rollo, pp. 42-49
[21] CA-G.R. SP No. 97013, Rollo, pp. 20-22
[22] CA-G.R. SP No. 97013, Rollo, pp. 119-121
[23] CA-G.R. SP No. 97013, Rollo, pp. 20-22
[24] CA-G.R. SP No. 97013, Rollo, p. 19
[25] CA-G.R. SP No. 97013, Rollo, p. 19
[26] CA-G.R. SP No. 97013, Rollo, p. 19
[27] CA-G.R. SP No. 97013, Rollo, p. 18
[28] CA-G.R. SP No. 97013, Rollo, p. 18
[29] CA-G.R. SP No. 97013, Rollo, pp. 2-17
[30] CA-G.R. SP No. 97013, Rollo, p. 13
[31] CA-G.R. SP No. 100436, Rollo, pp. 217-224
[32] CA-G.R. SP No. 100436, Rollo, p. 219
[33] CA-G.R. SP No. 97013, Rollo, p. 19
[34] CA-G.R. SP No. 100436, Rollo, p. 18
[35] CA-G.R. SP No.100436, Rollo, pp. 217-224
[36] CA-G.R. SP No. 100436, Rollo, pp. 46-47
[37] CA-G.R. SP No. 100436, Rollo, pp. 2-38
[38] CA-G.R. SP No. 100436, Rollo, p. 37
[39] CA-G.R. SP No. 97013, Rollo, pp. 247-249; CA-G.R. SP No. 100436, Rollo, pp. 357-358.
[40] CA-G.R. SP No. 100436, Rollo, pp. 2-38
[41] CA-G.R. SP No. 97013, Rollo, pp. 2-17
[42] CA-G.R. SP No. 97013, Rollo, pp. 2-17
[43] SP No. 97013, Rollo, p. 7.
[44] CA-G.R. SP No. 100436, Rollo, pp. 2-38
[45] SP No. 100436, Rollo, p. 21.
[46] CA-G.R. SP No. 97013, Rollo, p. 19
[47] CA-G.R. SP No. 97013, Rollo, pp. 20-21
[48] CA-G.R. SP No. 97013, Rollo, p. 19
[49] CA-G.R. SP No. 100436, Rollo, p. 46
[50] Cesar V. Madriaga, Jr. vs. China Banking Corporation, G.R. No. 192377, July 25, 2012
[51] CA-G.R. SP No.100436, Rollo, pp. 217-224
[52] CA-G.R. SP No. 100436, Rollo, p. 218
[53] CA-G.R. SP No. 100436, Rollo, p. 219
[54] CA-G.R. SP No. 97013, Rollo, p. 19
[55] CA-G.R. SP No. 97013, Rollo, p. 18
[56] CA-G.R. SP No. 97013, Rollo, pp. 20-22; CA-G.R. SP No. 100436, Rollo, pp. 41-43; CA-G.R SP No. 100436, Rollo, pp. 46-47
[57] CA-G.R. SP No. 97013, Rollo, p. 18
[58] Development Bank of the Philippines vs. Prime Neighborhood Association, G.R. Nos. 175728 & 178914, May 8, 2009