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A.M. OCA I.P.I. No. 06-2505-RTJ. October 23, 2006]
MARYLOU B. TOLENTINO v.
JUDGE ARTURO M. BERNARDO AND JUDGE VICTORIANO A. CABANOS, REGIONAL TRIAL COURT,
BRANCH 86 AND BRANCH 87,
First Division
Sirs/Mesdames:
Quoted hereunder, for your information, is a resolution of this Court dated OCT. 23, 2006 .
A.M. OCA I.P.I. No. 06-2505-RTJ (Marylou B. Tolentino v. Judge Arturo M. Bernardo and Judge Victoriano A. Cabanos, Regional Trial Court, Branch 86 and Branch 87, Gapan City, Respectively)
Considering the Report of the Office of the Court Administrator, to wit:
COMPLAINT dated 23 March 2006 of Marylou B. Tolentino charging respondents with Gross Ignorance of the Law relative to LRC Case No. 1856 entitled "Marylou B. Tolentino, M.D., petitioner v. Sps. Edgardo and Gemma Sibug, respondents."
Complainant avers that in handling the LRC case which was an Ex-Parte (Petition) for the Issuance of a Writ of Possession, respondent judges "conducted ignominious proceedings, abdicated from their ministerial duty to issue the writ of possession and apparently confederated to give undue advantage and benefit to respondent mortgagor spouses." Complainant narrates that she filed the petition on September 16, 2003 and on September 29, 2003, the court's presiding judge, Victoriano A. Cabagnot, [sic] gave due course to the petition and set the same for hearing on October 30, 2003. On said date however, the hearing was conducted and presided by Judge Arturo M. Bernardo who "irregularly allowed the representation and participation of counsel for the respondents, Sps. Edgardo and Gemma Sibug."
It is alleged that despite complainant's manifestation that the court's duty to issue the writ of possession is ministerial, both respondents continued their irregular proceedings of entertaining the representations made by the counsel for the mortgagor-spouses in clear defiance, disregard or plain ignorance of the law. The acceptance of pleadings filed by the mortgagors caused undue delay in the performance of an otherwise ministerial duty. Worse, respondent Judge Cabanos even irregularly ordered the consolidation of the said LRC case with Civil Case No. 2729 filed with Branch 35 of the same court which subsequently rejected said consolidation.
COMMENT dated 17 May 2006 of respondent Judge Victoriano A. Cabanos.
Respondent presents a detailed account of the proceedings that
transpired during the hearings in the subject LRC case which, he claims, show
that he handled the LRC case with the cold impartiality of a neutral judge;
that he is knowledgeable of his duties as a judge and that he did not cause any
undue delay in the issuance of the writ of possession prayed for in the subject
LRC case. Although, initially, it was
his pairing judge, Judge Bernardo who presided over the first six (6) out of
the fourteen (14) hearings in the said case, as he was then detailed in
For his part, respondent claims that in proceedings with the case, he only applied the law particularly Section 7 of Act 3135. He gave due emphasis to the posting of a bond in the amount equivalent to the use of the property for a period of twelve (12) months which bond is a requirement for the issuance of the writ of possession.
Respondent notes the fact that in her petition for possession, complainant only made a general undertaking that she was "ready, willing and able to put a bond executed in favor of the respondent in an amount this honorable court may fix to the effect that petitioner will pay all the damages which the respondents may sustain by reason of the writ of possession." It was only on March 11, 2004 that she filed an "Ex-Parte Motion To Fix the Bond That is Equivalent to Twelve Months Use of the Land for Purposes of Issuing A Writ of Possession." However, it was a useless pleading because it failed to mention the zonal or market valuation needed in the determination of the amount of the bond. It is only upon approval of bond that the court can issue a writ of possession and he had to resolve this matter first.
Respondent contends that even if arguably the writ should have been issued after the expiration of the period of redemption on September 4, 2004 as posting a bond was no longer required, it was still incumbent on the part of the petitioner to state so by way of manifestation or amendment of their pleading. However, petitioner did not even bother to make the necessary adjustment or pursue her ex-parte motion to fix bond, thus making this matter one of the pending incidents which the court had to resolve. Pending the resolution of this matter and all other incidents and considering further the failure of the petitioner to substantiate her claim, the issuance of the writ of possession remained a discretionary not a ministerial matter.
As to the allegation that he conspired with Judge Bernardo to give the Sibug spouses undue advantage, respondent tags the same to be libelous for which he has the right to file criminal or civil charges against complainant. He claims that his relationship with Judge Bernardo was purely professional and that he has never spoken or discussed anything with Judge Bernardo regarding this case or any case which he had handled. He adds that there was nothing ignominious on how he handled the case and if there were any suffering on complainant's part that was simply attributable to her and her own counsel as they failed to validate their allegations or claims. Worse, they participated all these times in these proceedings only to cry foul later for the alleged delay when the facts show that she has only herself to blame.
COMMENT dated 17 May 2006 of respondent Judge Arturo M. Bernardo.
Respondent Bernardo explains that as the presiding judge of Branch
36 which is the pairing court of Branch 87, he acted as the presiding judge of
Branch 87 when Judge Cabanos was temporarily detailed in RTC, Branch 71,
Respondent claims that he does not know the Sibug spouses from the start and there was no reason for him to give them undue advantage and benefit. All the Sibug spouses wanted was for them to be heard with respect to the Ex-Parte Motion for the Issuance of Writ of Possession and they were accommodated by complainant's counsel who addressed in his pleadings the manifestation of the Sibug spouses.
The seeming delay in the resolution of complainant's petition was due to petitioner's counsel acts predicated on the position that there was still a need for adducing evidence to his prayer for the issuance of writ of possession.
REPLY dated 1 June 2006 to the Comment of Judge Arturo M. Bernardo of complainant Marylou B. Tolentino.
Complainant avers that since respondent is very much aware that the proceeding before him was ex-parte, he should have observed in its handling its very nature as spelled out in the case of GSIS v. CA, 169 SCRA 244, especially its being "for the benefit of one party only and without notice to, or consent by any person adversely interested." She also claims that respondents narration of the chronology of the proceedings conducted by him from October 30, 2003 and up to March 25, 2004 and his receipt and considerations of the pleadings filed by counsel for the Sibug spouses was an admission of the charge of conducting an ignominious proceedings or simply ignorance of the law. He claims that respondent judge's statement that her counsel did not oppose to the various representation and pleadings filed by the Sibug spouses was a misrepresentation as the various pleadings they filed with the court contained the vigorous and lengthy discussion of her opposition or arguments to the manner by which respondent proceeded with the case.
EVALUATION: We find that there is no sufficient factual or legal basis to sustain the charge of gross ignorance of the law against the respondents in the present complaint. The charges of partiality and delay are similarly flawed.
Quite noticeable is the fact that no proof was adduced to show that respondents were guilty of bad faith in handling the proceedings. The established jurisprudence requires such proof before judges are subjected to administrative penalties for gross ignorance of the law.
Respondent Judge Cabanos is correct in posting that an ex-parte proceeding does not necessarily result in the grant of the writ prayed for. Records show that the property involved in the subject LRC case was purchased under Act 3135 and at the time the ex-parte petition was filed by the petitioner-complainant, the period for the redemption of the property had not yet expired. Under Section 7 of Act 3135, it is provided that:
In any sale made under the provisions of this Act, the purchaser may petition the Court of First Instance (now RTC) 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 (12) 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 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 of 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 the court shall, upon the filing of such petition collect the fees specified in paragraph 11 of section one hundred and fourteen of Act Twenty Eight Hundred 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." (emphasis supplied)
It is clear from the above cited provision that the issuance of a writ of possession in cases where the period of redemption has not yet expired is not automatic upon the filing of the ex-parte petition. Rather, it is upon the filing of the ex-parte motion and the approval of the corresponding bond that the court is expressly directed to issue the writ as held by this Court in the case of Samson, et al. v. Rivera, et al., G.R. No. 154355, May 20, 2004, thus:
Under the provision cited above, the purchaser in a foreclosure sale may apply for a writ of possession during the redemption period by filing for that purpose an ex-parte motion under oath, in the corresponding registration or cadastral proceeding in the case of a property with Torren's title. Upon the filing of such motion and the approval of the corresponding bond, the court is expressly directed to issue the writ.
Accordingly, in cases of issuance of writ of possession during redemption period, the court, is still called upon to determine first whether there was satisfactory compliance with the aforesaid requirements of law. And this was exactly what was done by the respondents judges in the handling of the subject LRC case for which they should not be faulted.
Complainant's emphatic and repeated assertion that the court's duty to issue the writ of possession prayed for is ministerial applies only in cases where the right of the buyer to the possession of the foreclosed property becomes absolute which happens upon the expiration of the redemption period. It is settled that:
After the expiration of the one-year period without redemption being effected by the property owner, the right of the purchaser to the possession of the foreclosed property becomes absolute. The basis of this right to possession is the purchaser's ownership of the property. Mere filing of an ex-parte motion for the issuance of the writ of possession will suffice, and the bond required is no longer necessary since possession becomes an absolute right of the purchaser as the confirmed owner. (Sps. Uy Tansipek v. PBC, 423 Phil. 727, 734 [December 14, 2001])
Since all the proceedings conducted in the LRC case and all the orders issued therein were all geared towards the establishment of the requirement for the issuance of the writ of possession, there can be no undue delay to speak of in the dispositions made by respondent judges. Indeed, if there was a seeming delay, it was because of complainant's failure, as petitioner in the LRC case, to duly substantiate their right to be placed in possession of the property and claim exception to the general rule that it is only after the consolidation of title in the buyer's name for failure of the mortgagor to redeem that the writ of possession becomes a matter of right. It should also be noted that, as pointed out by the respondents, complainant and her counsel freely participated in the proceedings that complainant now say ought not to have taken place. Thus, while now harping on the ex-parte nature of the proceedings before the respondents, complainant herself and her counsel captioned their petition as a litigated matter, i.e., "Marylou B. Tolentino, M.D., petitioner v. Sps. Edgardo and Gemma Sibug, respondents."
RECOMMENDATION: Respectfully submitted for the consideration of the Honorable Court is our recommendation that the instant complaint be DISMISSED for utter lack of merit.
and finding the evaluation and recommendation therein to be in accord with law and the facts of the case, the Court approves and adopts the same.
Complainant failed to show bad faith or malice on the part of respondents in the performance of their duties. In Ever Emporium, Inc. v. Maceda [1] cralaw , the Court held that, as a matter of policy, in the absence of fraud, dishonesty and corruption, the acts of a judge in his judicial capacity are not subject to disciplinary action. He cannot be subjected to liability - civil, criminal or administrative - for any of his official acts x x x as long as he acts in good faith.
ACCORDINGLY, the administrative complaint against Judge Arturo M. Bernardo and Judge Victoriano A. Cabanos is DISMISSED.
SO ORDERED.
Very truly yours,
(Sgd.) ENRIQUETA ESGUERRA-VIDAL
Clerk of Court
First Division
Endnotes:
[1] cralaw A.M. No. RTJ-04-1881, October 14, 2004, 440 SCRA 298, 312.
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