89. Sps. Arquiza v.

CA
GR No. 160479 | June 8, 2005 | Rule 68 (Foreclosure of REM) | Ian
Petitioner: Sps. Godofredo and Remedios Arquiza
Respondents: CA and Equitable PCIBank
Recit-Ready Facts: Petitioner Sps. Aqruiza obtained a loan from Equitable
PCIBank in the amount of Php 2.5M. They secured this with a REM. They
defaulted, which resulted in the foreclosure of the REM. Bank won in the
bidding and the spouses failed to redeem in time.
simply an incident in the transfer of title. Hence, a separate case for annulment
of mortgage and foreclosure sale cannot be barred by litis pendentia or res
judicata.
Sir’s Note: The pendency of the annulment proceedings will not stay and
will not even destroy the ministerial character of the issaunce of the writ
of possession. The nullity proceeding can go on, and the court may
decree the restitution or restoration in favor of the debtor if the court
subsequently finds out that there was indeed some defect in the
mortgage or foreclosure proceeding.

Bank filed a writ of possession. Spouses argued that the writ should not be
granted because they filed a pending civil case for the nullity of the REM and
foreclosure sale. They also argued that the writ did not come with a
certification of non-forum shopping.

Issue: W/N certification against non-forum shopping is needed. NO

W/N writ of possession can be granted even if there is a pending civil case for
the nullity of the REM and foreclosure sale. YES

Doctrine:
The certification against forum shopping is required only in a complaint or
other initiatory pleading. The ex parte petition for the issuance of a writ of
possession filed by the respondent is not an initiatory pleading.
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.
Application to the case:
The writ of possession is not an initiatory pleading, therefore it does not need
a certification against forum shopping.
Additionally, the civil case does not hinder the execution of writ of possession.
The issuance of the writ of possession being a ministerial function, and
summary in nature, it cannot be said to be a judgment on the merits, but
FACTS:
1. The petitioners obtained a loan from Equitable PCIBank for Php 2.5M.
This was secured by a real estate mortgage over their parcel of land in QC.
2. The petitioners defaulted in their payment, which led to the extrajudicial
foreclosure of their real estate mortgage. Equitable PCIBank was the highest
bidder and a certificate of sale was issued in their favor and was
subsequently registered with the RD of QC.The petitioners failed to redeem
within the redemption period, thus a TCT was issued in the name of the bank.
3. The petitioners filed a complaint against the bank and sheriffs with the
RTC for the declaration of the nullity of the promissory note, REM, and
foreclosure sale and damages with a plea for injunctive relief for the
suspension redemption period.
4. Private respondents demanded that the petitioners vacate and surrender
possession of the property, but they refused to do so. The bank then filed an
Ex Parte Petition for Issuance of a Writ of Possession. The petitioners
argued that the bank failed to incorporate a Certificate of Non-Forum
Shopping in its petitioners, and the petition was abated by the pendency of
the civil case for the non-payment of their mortgage obligation, the validity of
the foreclosure sale and their failure to redeem the same. The RTC decided
in favor of the bank.
5. The CA agreed with the RTC. They held that since a writ of possession
was not an initiatory pleading, a certification against forum shopping was not
necessary. Also, a petition for the issuance of a writ of possession is but an
incident in the trasnfer of title. MR was also denied by the CA, thus
petitioners filed their petition for review on certiorari with the SC.
ISSUES:
W/N a certification against forum shopping is required. NO
W/N a writ of possession can be proceeded while there is a pending civil
case for nullity of said mortgage and related transaction. YES.
RATIO:
Certification against forum shopping is required only in a complaint or other
initiatory pleading.
1. The ex parte petition for the issuance of a writ of possession filed by the
respondent is not an initiatory pleading. Although the private respondent
denominated its pleading as a petition, it is, nonetheless, a motion.
2. What distinguishes a motion from a petition or other pleading is not its
form or the title given by the party executing it, but rather its purpose. The
office of a motion is not to initiate new litigation, but to bring a material but
incidental matter arising in the progress of the case in which the motion is
filed.25 A motion is not an independent right or remedy, but is confined to
incidental matters in the progress of a cause. It relates to some question that
is collateral to the main object of the action and is connected with and
dependent upon the principal remedy. An application for a writ of possession
is a mere incident in the registration proceeding. Hence, although it was
denominated as a "petition," it was in substance merely a motion.
3. Such petition for the issuance of a writ of possession is filed in the form of
an ex parte motion, inter alia, in the registration or cadastral proceedings if
the property is registered. Apropos, as an incident or consequence of the
original registration or cadastral proceedings, the motion or petition for the
issuance of a writ of possession, not being an initiatory pleading, dispels the
requirement of a forum-shopping certification. Axiomatic is that the petitioner
need not file a certification of non-forum shopping since his claims are not
initiatory in character.
4. It bears stressing that Section 7 of Act No. 3135, as amended by Act No.
4118, specifically provides that the buyer at public auction may file a verified
petition in the form of an ex parte motion.
SEC. 7. In any sale made under the provisions of this Act, the purchaser may
petition the Court of First Instance (now Regional Trial Court) 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
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 Sec. 194 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 court shall, upon the filing of such petition, collect the fees
specified in par. 11 of Sec. 114 of Act No. 496, and the court shall, upon the
filing 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.
5. Indeed, it is well-settled that an ordinary action to acquire possession in
favor of the purchaser at an extrajudicial foreclosure of real property is not
necessary. There is no law in this jurisdiction whereby the purchaser at a
sheriff’s sale of real property is obliged to bring a separate and independent
suit for possession after the one-year period for redemption has expired and
after he has obtained the sheriff’s final certificate of sale. The basis of this
right to possession is the purchaser’s ownership of the property. The mere
filing of an ex parte motion for the issuance of the writ of possession would
suffice, and no bond is required.

6. The Court rejects the contention of the petitioners that the RTC erred in
not dismissing the petition of the private respondent on the grounds of forum
shopping and litis pendentia, in view of the pendency of Civil Case No. Q-98-
34094.

7. Well established is the rule 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. The issuance of the writ of possession
being a ministerial function, and summary in nature, it cannot be said
to be a judgment on the merits, but simply an incident in the transfer of
title. Hence, a separate case for annulment of mortgage and foreclosure
sale cannot be barred by litis pendentia or res judicata. (Take note of
this, sir emphasized this in his lecture).

8. Sir’s Note: The pendency of the annulment proceedings will not stay
and will not even destroy the ministerial character of the issaunce of
the writ of possession. The nullity proceeding can go on, and the court
may decree the restitution or restoration in favor of the debtor if the
court subsequently finds out that there was indeed some defect in the
mortgage or foreclosure proceeding.

9. 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.

Disposition of the Court

IN VIEW OF ALL THE FOREGOING, the petition is DENIED for lack of merit.
The Decision and Resolution of the Court of Appeals in CA-G.R. CV No.
74592 are AFFIRMED. Costs against the petitioner. SO ORDERED.