SPS. DANILO DEL ROSARIO AND YOLANDA DEL ROSARIO, PETITIONERS, VS. HON. AUGUSTO T. GUTIERREZ, IN HIS CAPACITY AS ACTING PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF BINANGONAN,…
CRUZ, J.:
Because of petitioners’ default, private respondent caused the extrajudicial foreclosure of the aforesaid mortgage on July 28, 1998. Being the highest bidder, private respondent was issued a certificate of sale covering the foreclosed properties and the same was registered in the Registry of Deeds on March 11, 1999.
As petitioners failed to redeem the foreclosed properties within the redemption period, private respondent consolidated its title therein, for which it was issued TCT Nos. 683404 and 683405 on November 11, 2003.
On March 3, 2004, private respondent filed a petition for issuance of a writ of possession of the foreclosed properties in the Regional Trial Court of Rizal (Binangonan, Branch 70), presided over by Hon. Augusto T. Gutierrez (or “respondent judge”).
On June 10, 2004, petitioners filed a “Motion for Leave to Oppose/File/Admit/Opposition to the Ex Parte Petition for Writ of Possession” (or “motion for leave to file opposition, etc.”). In the projected opposition, petitioners claimed that private respondent prevented them from redeeming the foreclosed properties and did not comply with the requirements of foreclosure proceedings.
Petitioners’ motion for leave to file opposition, etc. was denied by respondent judge in an order dated June 18, 2004. Their motion for reconsideration met the same fate per order dated August 3, 2004.
On September 14, 2005, a decision was rendered by respondent judge granting private respondent’s petition for issuance of writ of possession. Unfazed, petitioners filed a notice of appeal of said decision.
On October 12, 2005, respondent judge issued an order declaring petitioners’ notice of appeal “expunged from the records”. Petitioners’ motion for reconsideration was denied per order dated November 16, 2005.
Hence, this special civil action for certiorari, prohibition and mandamus, with an application for preliminary injunction, ascribing grave abuse of discretion to respondent judge for issuing the decision dated September 14, 2005 and order dated October 12, 2005. The action is predicated on the grounds that:
1. “THE DECISION OF THE LOWER COURT IS NULL AND VOID AS PETITIONERS WERE NOT HEARD AND GIVEN FAIR OPPORTUNITY TO PRESENT CONTRARY EVIDENCE”;
2. “THE NOTICE OF APPEAL WHICH WAS EARLIER FILED AND ACCEPTED BY THE LOWER COURT MUST HAVE BEEN GIVEN DUE COURSE AND SHOULD NOT HAVE BEEN EXPUNGED FROM THE RECORDS”;
3. “THE LOWER COURT SHOULD BE ENJOINED ROM (sic) FURTHER IMPLEMENTING THE WRIT OF POSSESSION WHICH IT PREVIOUSLY ISSUED AGAINST PETITIONERS”;
4. “THE LOWER COURT SHOULD BE PROHIBITED FROM FURTHER PROCEEDING WITH THE CASE AND INSTEAD ELEVATE THE RECORDS OF THIS CASE TO THIS HONORABLE COURT”;
5. “THE RESPONDENT BANK SHOULD BE ENJOINED FROM PROCEEDING TO TAKE POSSESSION THE (sic) SUBJECT PROPERTIES OF THE PETITIONERS WITHOUT FIRST BEING HEARD AND PRESENT THEIR EVIDENCES (sic)”; and
6. “THE PUBLIC RESPONDENT COURT RENDERED THE ASSAILED ORDER WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION AND THERE IS NO APPEAL NOR PLAIN OR SPEEDY REMEDY AVAILABLE IN THE ORDINARY COURSE OF THE LAW.”
The petition is devoid of merit.
Petitioners assert that the issuance of the writ of possession by respondent judge was premature, improper, irregular and unwarranted; that the foreclosure proceedings did not comply with the procedural requirements on notice of auction sale, publication, notice of bidding and registration proceedings; and that their substantive and procedural rights were violated because private respondent arbitrarily prevented them from redeeming the foreclosed properties.
Under Sec. 7 of Act No. 3135, as amended by Act No. 4118, a writ of possession may be issued either within the one-year redemption period, upon filing of a bond, or after the lapse of the redemption period, without need of a bond (Ong vs. Court of Appeals, 333 SCRA 189).
It is undisputed that ownership of the foreclosed properties was consolidated in private respondent upon failure of petitioners to redeem the same within the redemption period. In fact, TCT Nos. 683404 and 683405 covering the foreclosed properties had already been issued to private respondent.
It has been held that “after the consolidation of 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” (Manalo vs. Court of Appeals, 366 SCRA 752). While there are exceptions to the rule that the issuance of a writ of possession is a ministerial function, none of them is obtaining in the instant case.
Petitioners contend that they have the right to appeal the decision dated September 14, 2005 because they were not given the opportunity to be heard before the court a quo. The contention deserves scant consideration.
An ex-parte petition for the issuance of a possessory writ under Sec. 7 of Act No. 3135 is not, strictly speaking, a judicial process as contemplated in Art. 433 of the Civil Code. It is a non-litigious proceeding. It is brought for the benefit of one party only, and without notice to, or consent by any person adversely affected. It is a proceeding where the relief is granted without an opportunity for the person against whom the relief is sought to be heard. No notice is needed to be served upon persons interested in the subject property (De Vera vs. Agloro, 448 SCRA 203).
On the other hand, any question regarding the regularity and validity of the sale, as well as the consequent cancellation of the writ of possession, is to be determined in a subsequent proceeding as outlined in Sec. 8 of Act No. 3135 (Philippine National Bank vs. Sanao Marketing Corporation, 465 SCRA 287). Said section partly reads:
“Sec. 8. Setting aside of sale and writ of possession. – The debtor may, in the proceedings in which possession was requested, but not later than thirty days after the purchaser was given possession, petition that the sale be set aside and the writ of possession cancelled, specifying the damages suffered by him, because the mortgage was not violated or the sale was not made in accordance with the provisions hereof, and the court shall take cognizance of this petition in accordance with the summary procedure provided for in section one hundred and twelve of Act Numbered Four Hundred ninety six; x x x.”
The law is clear that the purchaser must first be placed in possession. The rationale for the mandate is to allow the purchaser to have possession of the foreclosed property without delay, such possession being founded on his right of ownership (Philippine National Bank vs. Sanao Marketing Corporation, supra).
Another “suitable remedy” available to petitioners was certiorari under Rule 65 of the 1997 Rules of Civil Procedure, but not appeal as an order granting a writ of possession is merely interlocutory (City of Mania vs. Serrano, 359 SCRA 231).
Consequently, We find no error on the part of respondent judge in denying petitioners’ motion for leave to file opposition, etc. and in expunging their notice of appeal from the records.
WHEREFORE, for lack of merit, the instant petition is DENIED due course and, accordingly, DISMISSED, with the result that the decision dated September 14, 2005 and order dated October 12, 2005 of the Regional Trial Court of Rizal (Binangonan, Branch 70) are AFFIRMED.
SO ORDERED.
Reyes, Jr., and Lanzanas, JJ., concur.