ChanRobles Virtual law Library
[G.R. No. 166969.
YSON vs. PHILTRUST BANK
Third Division
Sirs/Mesdames:
Quoted hereunder, for your information, is a resolution of this Court dated APR 27 2005.
G. R. No. 166969 (Sps. Roberto and Dely Yson vs. Philtrust Bank. )
This is a petition for review on certiorari under Rule 45 of the Rules of Court to set aside the November 18, 2004 Decision of the Court of Appeals in C.A.-G.R. CV No. 76580, which affirmed the September 26, 2002 Order of Branch 4 of the Regional Trial Court (RTC) of Manila, granting Philtrust Bank's petition for a writ of possession.
To secure their loans obtained from respondent, Philtrust Bank, petitioners Roberto and Dely Yson mortgaged three parcels of titled land and a condominium unit in its favor. Respondent extrajudicially foreclosed the mortgaged properties, however, petitioners having defaulted on their obligations.
At the public auction sale, the properties appeared to have been purchased by respondent being the highest bidder. A certificate of sale was issued and registered with the Register of Deeds of Manila. Upon failure of the petitioners to redeem the properties within the redemption period, respondent consolidated ownership thereof in its name and the corresponding transfer certificates of title were subsequently issued.
Respondent thereupon demanded that petitioners vacate the
properties, insisting that it is entitled to the possession and enjoyment thereof. The demands were unheeded, however,
drawing respondent to file on
While the petition for the issuance of a writ of possession was
pending, petitioners filed before the Manila RTC on
Petitioners claimed that the foreclosure sale was tainted with illegality because (1) only one of the four properties was actually sold, (2) respondent failed to return the surplus proceeds of the auction sale, and (3) no new notice of sale was issued and no republication or reposting of the notice for the rescheduled dates of the auction sale was made.
By Order of
Citing Ong v. Court of Appeals, the Court of Appeals denied petitioner's appeal: [1] cralaw
The law is clear that the purchaser must first be placed in possession of the mortgaged property pending proceedings assailing the issuance of the writ of possession. If the trial court later finds merit in the petition to set aside the writ of possession, it shall dispose in favor of the mortgagor the bond furnished by the purchaser. Thereafter, either party may appeal from the order of the judge in accordance with Section 14 of Act 496. which provides that "every order, decision, and decree of the Court of Land Registration may be reviewed ... in the same manner as an order, decision decree or judgment of a Court of First Instance (RTC) might be reviewed." 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.
In several cases, the Court has ruled that the issuance of a writ of possession is a ministerial function. "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. The judge issuing the order following these express provisions of law cannot be charged with having acted without jurisdiction or with grave abuse of discretion." Therefore, the issuance of the writ of possession being ministerial in character, the implementation of such writ by the sheriff is likewise ministerial. [2] cralaw
x���� x���� x
As a rule, any question regarding the validity of the mortgage or its foreclosure cannot be a legal ground for refusing the issuance of a writ of possession. Regardless of whether or not there is a pending suit for annulment of the mortgage or the foreclosure itself, the purchaser is entitled to a writ of possession, without prejudice of course to the eventual outcome of said case. Hence, an injunction to prohibit the issuance of writ of possession is entirely out of place. [3] cralaw (Citations omitted; italics in the original)
Moving for reconsideration, petitioners cited the case of Ouano v. Court of Appeals [4] to bolster their theory that the extrajudicial foreclosure was invalid.
It is a well-settled rule that statutory provisions governing publication of notice of mortgage foreclosure sales must be strictly complied with, and that even slight deviations therefrom will invalidate the notice and render the sale at least voidable. In a number of cases, we have consistently held that failure to advertise a mortgage foreclosure sale in compliance with statutory requirements constitutes a jurisdictional defect invalidating the sale. Consequently, such defect renders the sale absolutely void and no title passes.
Petitioner, however, insists that there was substantial compliance with the publication requirement, considering that prior publication and posting of the notice of the first date were made.
In Tambunting v. Court of Appeals, we held that republication in the manner prescribed by Act No. 3135 is necessary for the validity of a postponed extrajudicial foreclosure sale. Thus we stated:
Where required by the statute or by the terms of the foreclosure decree, public notice of the place and time of the mortgage foreclosure sale must be given, a statute requiring it being held applicable to subsequent sales as well as to the first advertised sale of the property.
Petitioner further contends that republication may be waived voluntarily by the parties.
This argument has no basis in law. The issue of whether republication
may be waived is not novel, as we have passed upon the same query in Philippine
National Bank v. Nepomuceno Productions Inc,. Petitioner therein sought
extrajudicial foreclosure of respondent's mortgaged properties with the Sheriff's
Office of Pasig, Rizal. Initially scheduled on
Petitioner and respondents have absolutely no right to waive the posting and publication requirements of Act No. 3135.
In People v. Donate, the Court expounded on what rights and privileges may be waived, viz.:
xxx���� xxx���� xxx
[T]he principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large.
xxx���� xxx���� xxx
Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if it infringes on the rights of others, or would be against public policy or morals and the public interest may be waived.
xxx���� xxx���� xxx
The principal object of a notice of sale in a foreclosure of mortgage is not so much to notify the mortgagor as to inform the public generally of the nature and condition of the property to be sold, and of the time, place, and terms of the sale. Notices are given to secure bidders and prevent a sacrifice of the property. Clearly, the statutory requirements of posting and publication are mandated, not for the mortgagor's benefit, but for the public or third persons. In fact, personal notice to the mortgagor in extrajudicial foreclosure proceedings is not even necessary, unless stipulated. As such, it is imbued with public policy considerations and any waiver thereon would be inconsistent with the intent and letter of Act No. 3135.
Publication, therefore, is required to give the foreclosure sale a reasonably wide publicity such that those interested might attend the public sale. To allow the parties to waive this jurisdictional requirement would result in converting into a private sale what ought to be a public auction. [5] cralaw (Citations omitted)
Again, the Court of Appeals denied petitioner's motion for reconsideration, finding that Ouano does not apply in this case.
Unlike the Ouano case, there is a separate action here pending before the Regional Trial Court of Manila, Branch 1, and docketed as Civil Case No. 02104393, over which the validity of the foreclosure sale was directly put in issue. Admittedly, while said issue is closely intertwined with the propriety of the issuance of the writ of possession, nonetheless, We cannot yet address this concern and arrogate upon Ourselves the authority to resolve the query because the jurisdiction over which has been initially lodged with the RTC of Manila, Branch 1.
Further, appellants argue that We "failed to reconcile the clash of two (2) requirements of Rep. Act 3135 in [a] foreclosure sale. One of which is strict compliance of publication of the notice of sale in a newspaper of general circulation... and the other is that the issuance of [a] writ of possession after the finality of the foreclosure sale is ministerial and no discretion is required on the part of the trial court.
Appellants surf on a wrong premise.
We already clarified in Our 18 November 2004 Decision that regardless of whether or not there is a pending suit for annulment of the mortgage or the foreclosure itself, the purchaser is entitled to a writ of possession, without prejudice of course to the eventual outcome of said case.
For emphasis, We must reiterate 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. Until the foreclosure sale of the property in question is annulled by a court of competent jurisdiction, the appellants are bereft of valid title and right to prevent the issuance of a writ of possession. (Italics and underscoring in the original).
Hence, the present petition for review on certiorari which is anchored on the following assignments of error:
1. ... [R]espondent court erred in affirming the decision of the trial court on the contention that issuance of writ of possession is ministerial after foreclosure sale is completed over the valid, meritorious and competent objection of the petitioners on jurisdictional ground for lack of publication of the notice of sale;
2. ... [R]espondent court erred in sustaining respondent bank's petition for issuance of writ of possession on petitioners' properties at Quiapo, Tondo and Sampaloc, Manila, by not taking into consideration of the fact that it was only their Sta. Cruz property that appears in the minutes of foreclosure proceeding to have been auction;
3. ... [R]espondent court, granting that there was a valid foreclosure sale, nevertheless erred in not refusing the issuance of writ of possession on another jurisdictional ground of unreturned surplus proceeds particularly on their Sta. Cruz property, which should be returned first to the petitioners before a writ of possession could be issued.
Petitioners' appeal fails. The appellate court clearly distinguished Ong v. Court of Appeals from Ouano v. Court of Appeals and correctly ruled that Ong, not Ouano, was applicable in the case at bar since the annulment case filed by petitioner was still pending with Branch 1 of the RTC of Manila. This Court in Alarilla, Sr. v. Ocampo [6] cralaw reiterated Ong and held:
First. The one-year period for the petitioners to redeem the mortgaged property had already lapsed. Title to the property had already been consolidated under the name of the respondent. As the owner of the property, the respondent is entitled to its possession as a matter of right. The issuance of a writ of possession over the property by the court is merely a ministerial function. There is no need for the respondent to file an action to evict the petitioners from the property and himself take possession thereof.
Second. Any question regarding the validity of the mortgage or its foreclosure cannot be a legal ground for refusing the issuance of a writ of possession. Regardless of whether or not there is a pending action for the nullification of the sale at public auction, or the foreclosure itself, or even for the nullification of the real estate mortgage executed by the petitioners over the property, the respondent as purchaser at public auction is entitled to a writ of possession without prejudice to the outcome of the action filed by the petitioners with the Regional Trial Court of Manila docketed as Civil Case No. 95-75769.
Third. The writ of possession issued by the trial court must be enforced without delay. It cannot be stymied or thwarted by the petitioners by raising issues already raised by them in Civil Case No. 95-75769 . [7] cralaw (Citations omitted; emphasis and underscoring supplied)
WHEREFORE, the Petition is DENIED.
Very truly yours,
(Sgd.) LUCITA
ABJELINA-SORIANO
Clerk of Court
Endnotes:
[1] cralaw 333 SCRA 189 (2000).
[2] cralaw Id. at 197.
[3] cralaw Id. at 198.
[4] cralaw 398 SCRA 525 (2003).
[5] cralaw Id. at 534-536.
[6] cralaw 417 SCRA 485 (2003).
[7] cralaw Id. at 491-492.
HERE FOR THE LATEST SUPREME COURT JURISPRUDENCE
PHILIPPINE SUPREME COURT DECISIONS
QUICK SEARCH
