Out in the cold

Johnny was awakened by the commotion outside their home. He saw his wife shouting at his best friend, Sheriff Rolito.

He could not believe what he heard. Sheriff Rolito was serving a Regional Trial Court issued writ of possession. They were being asked to vacate their land.

Johnny and his wife, through his lawyer, filed an Affidavit of Third Party Claim and a Very Urgent Motion for Intervention and to Recall and/or Stop the Enforcement/Implementation of the Writ of Possession.

They argued that they have been in actual occupation of the subject properties and claimed ownership thereof by virtue of an unnotarized Deed of Absolute Sale executed by the Spouses Lucas in their favor.

Admittedly, they forgot to have the Deed of Absolute Sale recorded with the Registry of Deeds.

Unknown to Johnny and his wife, Spouses Lucas, after the sale, mortgaged the property in favor of Banco de Pilipinas.

Unaware of the mortgage, Johnny and his wife built their dream home on the subject land. For failure of pay the loan, the bank extra-judicially foreclosed the property. The bank emerged as the winning bidder.

Q:  What is a writ of possession?

A:  A writ of possession is a writ of execution employed to enforce a judgment to recover the possession of land. It commands the sheriff to enter the land and give its possession to the party entitled under the judgment.

Under Sections 6 and 7 of Act 3135, as amended by Act 4118, a writ of possession may be issued in favor of a purchaser in a foreclosure sale of a real estate mortgage either within the one-year redemption period, upon the filing of a bond; or after the lapse of the redemption period, without need of a bond. (Gopiao vs. Metropolitan Bank and Trust Co., G.R. No. 188931, July 28, 2014)

Q: Can a writ of possession be issued even without notice by the court to any person adverse of interest?

A: Yes. Once title to the property has been consolidated in the buyer’s name upon failure of the mortgagor to redeem the property within the one-year redemption period, the writ of possession becomes a matter of right belonging to the buyer.

Its right to possession has then ripened into the right of a confirmed absolute owner and the issuance of the writ becomes a ministerial function that does not admit of the exercise of the court’s discretion.

Moreover, a petition for a writ of possession is ex-parte and summary in nature. As one brought for the benefit of one party only and without notice by the court to any person adverse of interest, it is a judicial proceeding wherein relief is granted without giving the person against whom the relief is sought an opportunity to be heard.

Since the judge to whom the application for writ of possession is filed need not look into the validity of the mortgage or the manner of its foreclosure, it has been ruled that the ministerial duty of the trial court does not become discretionary upon the filing of a complaint questioning the mortgage. (Gopiao vs. Metropolitan Bank and Trust Co., G.R. No. 188931, July 28, 2014)

Q:  Is there an exception to the general rule that it is the ministerial duty of the court to issue the writ of possession?

A: Yes. It is not a ministerial duty of the trial court under Act No. 3135 to issue a writ of possession for the ouster of third parties in possession and/or adversely holding the subject property.

The ex-parte writ could only be rightfully recognized against the judgment debtors/mortgagors but not against third parties who assert a right adverse to the judgment debtors/mortgagors. (Gopiao vs. Metropolitan Bank and Trust Co., G.R. No. 188931, July 28, 2014 citing the cases of Heirs of the Late Domingo N. Nicolas v. Metropolitan Bank & Trust Company (Metrobank), 558 Phil. 649, 652 (2007); Dayot v. Shell Chemical Company (Phils.), Inc., 552 Phil. 602 (2007); and Philippine National Bank v. Court of Appeals, 424 Phil. 757 (2002))

Q: Is the case of Johnny and his wife an exception to the general rule?

A: No. In all the Supreme Court cases cited in the Gopiao case, there remains one crucial difference: the certainty of possession. In all three cases, the fact that the subject property was actually in the possession of the adverse third party is undisputed.

Here, Johnny’s possession of the subject properties in this case is questionable. He failed to substantiate his possession with sufficient evidence.

On its face, the Deed of Absolute Sale which he relies upon is neither complete nor in due form.

Certain essential details are missing therein, such as the tax account numbers of the interested parties and the names of the witnesses.

More importantly, the same was not notarized. He did not present other convincing evidence to bolster his claim of ownership and/or possession.

Equally telling is that the titles covering the subject properties depict no trace of petitioner’s claim.

The unnotarized Deed of Sale is nowhere to be found on the dorsal side of the titles. There is likewise no notice or adverse claim annotated or inscribed at the back of the same.

Upon verification at the Office of the Register of Deeds for the Province of Pampanga, Municipal Assessor and Treasurer’s Office, the bank found out that the subject titles and latest tax declarations covering the disputed properties were still registered under the names of the previous owners without any annotation on the same as to the existence of a sale between said spouses and petitioner.

To cast more doubt on the claim of Johnny and his wife, the Bank found no occupants in the subject property when it inspected the same before approving the loan applied for by the previous owners.

Had Johnny and his wife been able to properly substantiate their claim of possession with sufficient evidence, then their case would have been an  exception.

Not only did they present an unnotarized and unregistered Deed of Absolute Sale but there exists no trace of their claim of ownership on the titles of the subject properties. (Gopiao vs. Metropolitan Bank and Trust Co., G.R. No. 188931, July 28, 2014)

Ma. Soledad Deriquito-Mawis is currently the Dean of College of Law, Lyceum of the Philippines University;   and President of Philippine Association of Law Schools