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[G.R. No. 148588.September 24, 2001]

SPS. GO vs. LIBERTY SAVINGS AND LOAN ASSOCIATION, INC.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated SEPT 24 2001.

G.R. No. 148588(Spouses Imelda and Ernesto Go vs. Liberty Savings and Loan Association, Inc.)

Petitioners assail the decision of the Court of Appeals affirming the decision of the regional trial court upholding, in consequence, the validity of the writ of possesion notwithstanding the pendency of an action for annulment of foreclosure proceedings.

On November 15, 1995, petitioner spouses obtained a loan from private respondent in the amount of Two Million Pesos (P2,000,000.00) with an interest at 18% per annum. Said loan was secured by a real estate mortgage over 3 parcels of land covered by TCT Nos. T-22559 P(M), T-22554 P(M), and T-22558 P(M).

Upon default in the payment of the loan, private respondent sent demand letters for the payment of their loan to petitioners but the latter failed to settle their obligation.

Consequently, on October 29, 1998 private respondent extrajudicially foreclosed and it ended up as the highest bidder at the public auction. Thereafter, a certificate of sale dated October 29, 1998 was issued in favor of private respondent.

On February 25. 1999, private respondent filed a petition for issuance of writ of possession over the subject foreclosed lots.

In their opposition, petitioners contended that there was a pending petition to declare null and void the extrajudicial foreclosure and that said petition constitutes a prejudicial question. However, petitioners twice failed to appear on the scheduled hearings. Thus, upon motion, private respondent was allowed to present evidence ex parte. Thereafter a writ of possession was issued upon a bond of P100,000.00.

Displeased, petitioner spouses appealed to the Court of Appeals which in turn rendered the above assailed decision.

Thus, the instant petition which must likewise fail.

On a number of occasions, the Court has ruled that even before the expiration of the redemption period, it is ministerial upon the court to issue a writ of possession in favor of a purchaser provided that a proper notion has been filed, a bond approved, and no third person is involved (Philippine National Bank vs. Adil, 118 SCRA 110 [1982]).

The order for a writ of possession issues as a matter of course upon the filing of the proper motion and the approval of the corresponding bond. No discretion is left to the court. And any question regarding the regularity and validity of the sale is left to be determined in a subsequent proceeding outlined in Section 8 of Act No. 3135, as amended by Act No. 4118, otherwise known as an Act to Regulate the Sale of Property Under Special Powers Inserted In or Annexed to Real Estate Mortgage which reads:

Section 8. - 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 thereof, 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 and Ninety-Six, and if it finds the complaint of the debtor justified, it shall dispose in his favor of all or part of the bond furnished by the person who obtained possession. Either of the parties may appeal from the order of the judge in accordance with sections fourteen of act numbered Four Hundred and Ninety-Six.

Thus, the right of the purchaser to be placed in the possession of the property is bolstered by the above provision which states that if the court finds the complaint assailing the legality of the foreclosure sale to be justified, it shall not transfer the possession of the property but will only proceed against the bond posted by the purchaser.

WHEREFORE, petition is denied due course.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court


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