ChanRobles Virtual law Library
[ G.R. No. 142069. June 14, 2000]
SPS. GEORGE & CONSTANCIA VELASCO vs. CORAZON LIM.
FIRST DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated JUN 14 2000.
G.R. No. 142069 (Sps. George Velasco and Constancia Velasco vs. Corazon Lim.)
Before us is a Petition for Review under Rule 45 of the 1997 Rules of Civil Procedure of the Decision of the Court of Appeals, Special Ninth Division, dated February 08, 20001 Rollo, pp. 47-52. in CA-G.R. CV No. 583502 Corazon Lim, Plaintiff-Appellee vs. Sps. Geroge Pedro Velasco and Constancia Velasco, Defendants-Appellants. which affirmed in toto the Order of the Regional Trial Court of Makati City, Branch 148,3 Id., at 39-44. granting the writ of possession in favor of respondent Corazon Lim over the properties covered by Transfer Certificates of Title (TCT) Nos. S-93397 and S-95110 issued by the Register of Deeds of Makati.
Petitioners George and Constancia Velasco were the owners-mortgagors of the properties covered by TCT Nos. S-93397 and S-95110 issued by the Register of Deeds of Makati (hereafter, the "properties"). Due to their failure to redeem the mortgage over said properties, the same was foreclosed and the properties were sold in an extrajudicial sheriff's sale conducted by the Ex-Officio Sheriff of Makati City on October 4, 1994. Respondent was the highest bidder during the auction, where the properties were sold at the total bid price of P6,500,000.00.
The Certificate of Sale of the properties was issued on July 25, 1995 and was registered on August 7, 1995.
On July 29, 1996, petitioners filed in the Regional Trial Court of Makati City an action to declare the sheriff's sale of October 4, 1994 null and void on the ground that the publication Bagong Pinoy in which the Notice of Sale was allegedly published is not a newspaper of general circulation in Makati City, hence, there was non-compliance with the requirements under Act No. 3135. The case was assigned to Branch 59 of the RTC of Makati City.4 The said case was docketed as Civil Case No. 96-1170.
On March 20, 1997, respondent filed with the RTC of Makati City a petition for issuance of a writ of possession over the properties. Respondent claimed that the period for redemption of the properties had already lapsed and consequently, title to the properties had been consolidated in her name. She alleged further that petitioners have refused to yield possession thereof despite their knowledge of the sheriff's sale, the consolidation of the title and demands made upon them.5 see Order of the Regional Trial Court of Makati City, Branch 148, dated March 20, 1997, Rollo, pp. 39-40.
The petition was assigned to Branch 148 of the RTC of Makati City.
Petitioners subsequently filed an opposition to respondent's motion, stating that the same should not be granted in view of the pendency of the action for annulment of the sheriff's sale before the RTC of Makati City, Branch 59.
Thereafter, the RTC of Makati City, Branch 148 issued an Order, dated March 20, 19976 Id., at 39-44. granting the writ of possession prayed for. Citing the cases of Vda. De Zaballero vs. Court of Appeals 7 229 SCRA 810 (1994), per Puno, J. and F. David Enterprises vs. Insular Bank of Asia and America, 8 191 SCRA 516 (1990), per Cruz, J. the court ruled that if the purchaser of a foreclosed property upon ex parte application for a writ of possession and filing of the required bond has the right to acquire possession over the property involved, with more reason may a purchaser demand for a writ of possession after the expiration of the redemption period.
Aggrieved, petitioners appealed the aforesaid Order to the Court of Appeals. The appellate court, however, affirmed in toto the said Order in its Decision, dated February 8, 2000.9 Id., at 47-52.
Hence, this Petition.
Petitioners claim that the appellate court gravely erred in affirming the lower court's finding that respondent is entitled to a writ of possession over the properties in view of several defects in the auction sale of October 4, 1994, to wit: (a) the notice of auction sale does not indicate the dates of the issues of Bagong Pinoy when the notice would be published; (b) the Certificate of Sale does not indicate the dates when the notice of auction sale was published in Bagong Pinoy; (c) the Certificate of Sale was issued only on July 25, 1995 or more than nine months after the sale; (d) the Certificate of Sale was registered only on August 7, 1995 or more than ten months after the sale; (e) no proof was shown that Bagong Pinoy is a newspaper of general circulation in Makati City where the properties are located; and (f) no proof was shown that the notice of sale was in fact published.10 Petition, Id., at 17-18.
Petitioners further allege that the appellate court gravely erred in applying the rulings in Gonzales Vda. De Zaballero vs. CA and F. David Enterprises vs. Insular Bank of Asia and America because unlike the present case, there was no patent irregularity in the publication of the notice of auction sale and there was no action instituted to nullify the auction sale within the redemption period in the aforesaid cases.11 Id., at 18.
The Court is not persuaded.
No error was committed by the Court of Appeals in affirming the RTC's issuance of a writ of possession over the properties in favor of respondent, for it is well-settled that the purchaser in a foreclosure sale of a mortgaged property is entitled to a writ of possession and that upon an ex parte petition of the purchaser, it is ministerial upon the court to issue such writ of possession in his favor.12 Vda. De Zaballero vs. Court of Appeals, supra Note 7, Veloso vs. Intermediate Appellate Court, 205 SCRA 227, 229 (1992), per Narvasa, C.J., F., David Enterprises vs. Insular Bank of Asia and America, supra Note 8, see also Barican vs. Intermediate Appellate Court, 162 SCRA 358, 363 (1988) per Gutierrez, Jr., J. Such right may be exercised by the purchaser even during the pendency of the redemption period provided that he posts a bond in an amount equivalent to the use of the property for a period of twelve months,13 F. David Enterprises vs. Insular Bank of Asia and America, supra Note 8 at 523; Vda. de Zaballero vs. Court of Appeals, supra Note 7 at 813-814; Veloso vs. Intermediate Appellate Court, supra Note 12, at 234, see also De Gracia vs. San Jose, et al., 94 Phil. 623 (1954), per Reyes, J. and Marcelo Steel Corporation vs. Court of Appeals, 54 SCRA 89 (1973), per Barredo, J. as required under Section 7 of Act No. 3135, as amended by Act 4118.14 Section 7 of Act No. 3135, as amended by Act No. 4118 states thus:
SEC. 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 complying with the requirements of this Act. Such petition shall be made under oath and filed in form of an ex parte motion in the registration or cadastral proceedings if the property is registered, or in special proceedings in the case of property registered under the Mortgage Law or under section one hundred and ninety-four of the Administrative Code, or any other real property encumbered with a mortgage duly registered in the office of any register of deeds in accordance with any existing law, and in each case the clerk of court shall, upon the filing of such petition, collect the fees specified in paragraph eleven of section one hundred and fourteen of Act Numbered Four hundred and ninety-six, as amended by Act Numbered Twenty-eight and sixty-six, 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.
This Court has likewise held in several cases that a writ of possession in favor of the purchaser at a foreclose sale may be issued notwithstanding the pendency of another action to annul the said foreclosure sale, since the two cases involve issues separate and distinct from one another.15 Vda. De Jacob vs. Court of Appeals, 184 SCRA 294 (1990), per Gancayco, J.
In the case at bar, the only issue brought to the Court of Appeals by petitioners was the propriety of the lower court's issuance of a writ of possession in favor of respondent. The issue regarding the nullity of the foreclosure sale held on October 4, 1994 cannot be dealt with herein inasmuch as said issue is the subject of a case pending in another branch of the Regional Trial Court of Makati.16 Civil Case No. 96-1170, assigned to the Regional Trial Court of Makati City, Branch 59. We reiterate our ruling in Vda. De Zaballero vs. Court of Appeals, thus:
We need not delve on the regularity or validity of the foreclosure sale in as much as any alleged defect or irregularity in the foreclosure sale must be threshed out in Civil Case No. 91-57724, and not in this case where the only issue is the propriety of the issuance of the writ of possession. 17 supra Note 7 at 814.
Considering the foregoing, we find that the Court of Appeals acted in accordance with law when it upheld the Order, dated March 20, 1997, of the RTC of Makati City Branch 148, granting the writ of possession prayed for by respondent, despite the pendency of the action for annulment of the foreclosure sale of October 4, 1994 before Branch 59 of the same court.
WHEREFORE, the petition is DENIED for lack of merit. The Decision of the Court of Appeals, Special Ninth Division, dated February 08, 2000 in CA-G.R. CV No. 58350 is hereby AFFIRMED.
Very truly yours,
(Sgd.) VIRGINIA ANCHETA-SORIANO
Clerk of Court
HERE FOR THE LATEST SUPREME COURT JURISPRUDENCE
PHILIPPINE SUPREME COURT DECISIONS
QUICK SEARCH
