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BPI Family Savings Bank v Golden Power Diesel Facts: 1994, CEDEC Transport mortgaged certain property to secure

a loan (6.5M) in favour of BPI. Later, it obtained 2.1M and 1.1M loans using the same properties. CEDEC defaulted and so in 1998, BPI sought to foreclose extrajudicially the real estate mortgage. In December 1998, after due notice and publication, the sheriff sold the properties at public auction. BPI came out as highest bidder and acquired the property for 13M. The one year redemption period lapsed without CEDEC redeeming the properties so the title was consolidated in BPIs name. However, despite demands, CEDEC refused to vacate and surrender possession of the property so BPI applied for a writ of possession with the RTC of Pasay. RTC granted on July 27 2002. On July 29, Golden Power Diesel and Renato Tan motioned to hold the implementation of the writ alleging that they are in possession of the properties. They say they acquired from CEDEC in September 1998 pursuant to a Deed of Sale. GPD argue that they are third persons claiming rights adverse to CEDEC, the judgment obligor and they cannot be deprived of possession over the properties. Also, they filed a complaint in RTC of Pasay for cancellation of the Sheriffs Certificate Sale and an order to direct BPI to honour and accept the Deed of Sale between CEDEC and respondents. RTC denied their motion. An alias writ of possession was then issued which expired without being implemented. Another one was later issued but before it could be implemented, Renato Tan filed an affidavit of third party claim on the properties. Instead of implementing the writ, the sheriff transferred the matter to the RTC for resolution. The RTC suspended the implementation saying that its implementation should not affect 3rd persons holding adverse rights to the judgment obligor; that the first writ failed to consider respondents claim of ownership in another court and that respondents are in actual possession. BPI moved to reconsider but was denied. It went to CA which affirmed the RTC. IT said that the principle that the implementation of the writ of possession is a mere ministerial function of the trial court is not without exception. The obligation to issue an ex parte writ of possession ceases to be ministerial once it appears there is a third party in possession of the property who is claiming a right adverse to that of the debtor or mortgagor.

Issue: W/N GPD is a third party in possession who has an adverse interest against the debtor or mortgagor. No. Held and Ratio: General Rule: a purchaser in a public auction sale of a foreclosed property is entitled to a writ of possession and, upon ex parte petition of the purchaser; it is ministerial upon the trial court to issue the writ of possession in favour of the purchaser: Exception: when the foreclosed property is in the possession of a third party holding the same adversely to the judgment obligor, the issuance of a writ of possession ceases to be ministerial and may no longer be done ex parte. The procedure is for the trial court to order a hearing to determine the nature of the adverse possession; For the exception to apply, the property need not only be possessed by a third party, but also held by the third party adversely to the judgment obligor;

At case: GPD not a third party in possession who has adverse interest against the mortgagor; Clear that GPD acquired the properties for 15M thru a Deed of Sale with Assumption of Mortgage; Therefore, respondents hold title to and possess the properties as CEDEBs transferees and any right that they have over the properties is derived from CEDEC; As transferees of CEDEV, respondents merely stepped into CEDEVs shoes and are necessarily bound to acknowledge and respect the mortgage CEDEC had earlier executed in favour of BPI; Respondents are successors-in-interest of CEDEC and thus, their occupancy over the properties cannot be considered adverse to CEDEC; China Bank v Lozada: third party in possession adversely to the judgement obligor contemplates a situation where a third party hold the property by adverse title or right, such as that of a co-owner, tenant or usufructuary; The co-owner, agricultural tenant, and usufructuary possess the property in their own right, and they are not merely the successor or transferee of the right of possession of another co-owner or the owner of the property; At case: Respondents cannot assert that their right of possession is adverse to that of CEDEC when they

have no independent right of possession other than what they acquired from CEDEC;; There was no reason for trial court to suspend the implementation of the writ of possession;

Arguments: Petitioners: 1. Denied due process because they were declared in default despite their opposition to the application for the writ; Issuance of a writ will deprive them not only of their possession but also of its ownership; Cited Bustos v CA and Vda. De Legaspi v Avedano: physical possession should not be disturbed pending the final determination of the more substantial issue of ownership; Forum shopping by PBC because the application for the writ was filed during pendency of a case questioning the validity of the foreclosure sale.

Also, a pending action for annulment of mortgage or foreclosure sale does not stay the issuance of the writ of possession: The trial court need not look into the validity of the mortgage or the manner of its foreclosure; The purchaser is entitled to a writ of possession without prejudice to the outcome of the pending annulment case.

2.

3.

PETITION GRANTED. Held and Ratio: Cua Lai Chu, Caro Castro and Juanita Castro v Laqui and PBC 1994, petitioners obtained a loan of 3.2M from PBC. To secure it, they mortgaged their property. Later the real estate mortgaged was amended which brought the total loan to 5M. Later, petitioners failed to pay so PBC applied for extrajudicial foreclosure the property. Upon receipt of the notice of the foreclosure sale, petitioners sought to annul and applied for a TRO. The foreclosure sale did not push thru as originally scheduled because the TRO was granted. Later, the TRO was eventually lifted and the foreclosure sale was conducted on May 2002 with PBC being the highest bidder. A certificate of sale was issued to PBC. After the lapse of the one-year redemption period, PBC sought to consolidate its ownership over the property. The RoD issued a TCT in its name in 2003. In 2004, PBC applied for a writ of possession which petitioners opposed. The trial court granted PBCs motion for a declaration of general default and allowed it to present evidence ex parte. IT denied petitioners notice of appeal. Petitioners went on certiorari to CA but it dismissed. MFR was denied. Issue: W/N the writ of possession was properly issued despite the pendency of a case questioning the validity of the extrajudicial foreclosure and despite the fact that petitioners were declared in default in the proceeding for the issuance of a writ of possession. Yes. Petitioners cited cases not in point: Bustos: issue of possession was intertwined with the issue of ownership in the consolidated cases of unlawful detainer and accion reinvidicatoria; Vda. De Legaspi: in case of unlawful detainer, physical possession should not be disturbed pending the resolution of the issue of ownership; SC: neither involved the right of possession of a purchaser at an extrajudicial foreclosure of mortgage; Banco Filipino v Pardo more in point: bank applied after certificate of sale was issue; lower court dismissed application for writ; SC dismissed saying the purchaser at the auction sale was entitled to a writ of possession pending the lapse of the redemption period upon a simple motion and upon the posting of a bond; Navarra v CA: purchaser at an extrajudicial foreclosure sale has a right to the possession even during the 1 year redemption period provided the purchaser files an indemnity bond; After the lapse of the period with no redemption, the right becomes absolute and may be demanded by the purchaser even without the posting of a bond; Possession may be then obtained under a writ which may be applied for ex parte; 3135.7;

At case: Certificate of Sale annotated in June 2002; the period lapsed in June 2003; It was 2004 when PBC applied for a writ; period long lapsed; Since property was not redeemed, PBC acquired an absolute right, as purchaser, to the writ of possession;

It had become the ministerial duty of the lower court to issue the writ pursuant to 3135.7;

Once ownership has been consolidated, issuance of the writ becomes a ministerial duty of the court, upon proper application and proof of title; When PBC applied for a writ, it presented a new TCT in its name dated July 2003; The right of possession was thus based on ownership; The right of PBC over the property became absolute, vesting in it the corollary right of possession; No violation of due process Not denied when they were declared in default; Application for the writ is ex parte; The writ issues as a matter of course once the requirements are fulfilled; no discretion is left to court; Petitioners cannot oppose or appeal the courts order granting the writ of possession in an ex parte proceeding: Remedy: to have the sale set aside and the writ of possession cancelled; 3135.8; Any question as to the validity of the foreclosure sale and resulting cancellation n of the writ may be determined in a subsequent proceeding; 3135.8; Right to possession of a purchaser at an extrajudicial foreclosure sale is not affected by a pending case questioning the validity of the foreclosure proceeding; Latter not bar to the former; Even pending such latter proceeding, the purchaser at a foreclosure sale is entitled to the possession of the foreclosed property;

No forum shopping: Under 3135, writ issued ex parte as a matter of course upon compliance with the requirements; It is not a judgment on the merits that can amount to res judiciata. AFFIRMED.

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