Writ of possession issued ex parte. - sc.judiciary.gov.ph/jurisprudence/2012/august2012/178288.pdf

sc.judiciary.gov.ph/jurisprudence/2012/august2012/178288.pdf

'x x x.


Accordingly, unless a case falls under recognized exceptions provided by law and jurisprudence,  we maintain the ex parte, non-adversarial, summary and ministerial nature of the issuance of a writ of possession as outlined in Section 7 of
Act No. 3135, as amended by Act No. 4118, which provides:
SECTION 7. In any sale made under  the provisions of this Act, the purchaser may petition the Court of First Instance of the province or place where the property or any part thereof is situated, to give him possession thereof during the redemption period, furnishing bond in an amount equivalent to the use of the property for a period of twelve months, to indemnify the debtor in case it be shown that the sale was  made without violating the mortgage or without
complying with the requirements of this Act.  Such petition shall be made under oath and filed in form of an ex parte motion x x x and the court shall, upon approval of the bond, order that a writ of possession issue, addressed to the sheriff of the province in which the property is situated, who shall execute said order immediately. (Emphasis supplied.)

 Under the provision cited above, the purchaser in a foreclosure sale may apply for a writ of possession during the redemption period.  Notably, in this case, the one-year period for the spouses Fortaleza to redeem the mortgaged property
had already lapsed.  Furthermore, ownership of the subject property had already been consolidated and a new certificate of title had been issued under the name of the spouses Lapitan.  Hence, as the new registered owners of the subject property, they are even more entitled to its possession and have the unmistakable right to file an ex parte motion for the issuance of a writ of possession.  As aptly explained in Edralin v. Philippine Veterans Bank, the duty of the trial court to grant a writ of possession in such instances is ministerial, and the court may not exercise discretion or judgment, thus:

Consequently, the purchaser, who has a right to possession after the expiration of the redemption period, becomes the absolute owner of the property when no redemption is made. x x x The purchaser can demand possession at any time following the consolidation of ownership in his name and the issuance to him of a new TCT. After consolidation of title in the purchaser’s name for failure of the mortgagor to redeem the property, the purchaser’s right to possession ripens into the absolute right of a confirmed owner. At that point, the issuance of a writ of possession, upon proper application and proof of title becomes merely a ministerial function. Effectively, the court cannot exercise its
discretion.  (Emphasis in the original.)

x x x."