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(9) Rule on redemption liberally construed.

Although it is required that full payment of the purchase price must be made
within the redemption period, the rule on redemption is actually liberally
construed in favor of the original owner of the property. The policy of the law is
to aid rather than to defeat him in the exercise of his right of redemption.

The Supreme Court has allowed parties in several cases to perfect their right of
redemption even beyond the prescribed period.

De los Reyes v. Intermediate Appellate Court: the amount deposited with the
trial court four (4) days after the lapse of the redemption period was considered
an affirmation of the earlier timely offer to redeem and, thus, considered a valid
payment.

Castillo v. Nagtalon and Bodiongan v. Court of Appeals the Supreme Court


upheld a redemption made by the judgment debtor or the redemptioner in good
faith even if amount paid was less than the redemption price.

Where the parties stipulated that the mortgaged property shall also answer for
future loans or advancements, the same is valid and binding between the parties
(Ajax Marketing & Development Corporation v. Court of Appeals)

(10) Failure to redeem; consolidation of ownership

It is settled that the buyer in a foreclosure sale becomes the absolute owner of the
property purchased if it is not redeemed during the period of one year after the
registration of sale.

As such, he is entitled to the possession of the property and can demand it any
time following the consolidation of ownership in his name and the issuance of a
new transfer certificate of title.

In such a case, the bond required in Section 7 of Act No. 3135 is no longer
necessary.

Possession of the land then becomes an absolute right of the purchaser as


confirmed owner. Upon proper application and proof of title, the issuance of the
writ of possession becomes a ministerial duty of the court.

After the one year redemption period, the mortgagor loses all interest over the
foreclosed property.

The purchaser, who has a right to possession after the expiration of the
redemption period, becomes the absolute owner when no redemption is made.
The purchaser can demand possession at anytime following the consolidation of
ownership in his name and the issuance to him of a transfer certificate of title.

(11) No actual transfer of mortgaged property until after the expiration of the one-
year redemption period

Under Sec. 63 of PD 1529, if no right of redemption exists, the certificate of title of


the mortgagor shall be cancelled, and a new certificate issued in the name of the
purchaser. But where the right exists, the certificate title of the mortgagor shall
NOT be cancelled, but the certificate of sale and the order confirming the sale
shall be registered by a brief memorandum thereof made by the Register of
Deeds upon the certificate of title.

It is therefore clear that there is NO transfer of ownership the mortgaged


property until AFTER the expiration of the one-year period and the title thereto
is consolidated in the name of the mortgagee in case of non-redemption.

(12) Liens subordinate to mortgage

The rights of a subsequent lien holder over the mortgaged property are inferior
to that of the prior mortgagee.

A subsequent lien holder acquires only the right of redemption vested in the
mortgagor, and his rights are strictly subordinate to the superior lien of the
anterior mortgagee. After the foreclosure sale, the remedy of the second
mortgagee is limited to the right to redeem by paying off the debt secured by the
first mortgage.

The rule is that upon a proper foreclosure of a prior mortgage, all liens
subordinate to the mortgage are likewise foreclosed, and he purchaser at public
auction held pursuant thereto acquires title free from the subordinate liens.

Ordinarily, thereafter the Register of Deeds is authorized to issue the new titles
without carrying over the annotation of subordinate liens. The failure of the
subsequent attaching creditor to redeem, within the time allowed by Section 6 of
Act 3135, the land which was sold extrajudicially to satisfy the first mortgage,
gives the purchaser a perfect right to secure the cancellation of the annotation of
said creditors attachment lien on the certificates of title of said land.

7. Writ of possession

A writ of possession is an order whereby the sheriff is commanded to place a


person in possession of real or personal property. The court issuing the writ of
possession has control and supervision over its processes.

Under Section 7 of Act No. 3135, as amended by Act No. 4118, a writ of
possession may be issued either (1) within the one-year redemption period, upon
the filing of a bond, or (2) after the lapse of the redemption period, without need
of a bond.
A writ of possession may be issued in the following cases:

(a) In a land registration proceeding, a proceeding in rem;

(b) In case of extrajudicial foreclosure of a realty mortgage;

(c) In case of judicial foreclosure of mortgage, a proceeding quasi in rem,


provided that the mortgagor is in possession of the mortgaged realty and
no third person, not a party to the foreclosure suit, had intervened; and

(d) In execution sales.

(1) Issuance of write ex parte and ministerial

The rule is that after the redemption period has expired, the purchaser of the
property has the right to be placed in possession thereof. Accordingly, it is the
inescapable duty of the sheriff to enforce the writ of possession, especially where
a new title has already been issued in the name of the purchaser.

it is ministerial upon the court to issue a writ of possession in favor of a


purchaser, provided that a proper motion has been filed, a bond approved, and
no third person is involved.76

Sulit v. Court of Appeals: The governing law thus explicitly authorizes the
purchaser in a foreclosure sale to apply for a writ of possession during the
redemption period by filing an ex parte motion under oath for that purpose in the
corresponding registration or cadastral proceeding in the case of property with
Torrens title. Upon the filing of such motion and the approval of the
corresponding bond, the law also in express terms directs the court to issue the
order for a writ of possession. No discretion appears to be left to the court. Any
question regarding the regularity and validity of the sale, as well as the
consequent cancellation of the writ, is to be determined in a subsequent
proceeding as outlined in Section 8, and it cannot be raised as a justification for
opposing the issuance of the writ of possession since, under the Act, the
proceeding for this is ex parte. Such recourse is available to a mortgagee, who
effects the extrajudicial foreclosure of the mortgage, even before the expiration of
the period of redemption provided by law and the Rules of Court

(2) Proceedings for the issuance of write of possession is summary and non-litigous in
nature

The proceedings under Act No. 3135 are summary in nature, there is no need for
the purchaser to implead the mortgagors as respondents, hence the latter cannot
claim denial of due process when the court takes cognizance of the petition for
the issuance of a writ of possession without prior service of the petition and of
the notice of hearing thereof upon themThe reasons are:

o First. An ex parte petition for the issuance of a possessory writ is not,


strictly speaking, a judicial process as contemplated the Civil Code. It is
a judicial proceeding for the enforcement of ones right of possession as
purchaser in a foreclosure sale. It is not an ordinary suit filed in court, by
which one party sues another for the enforcement of a wrong or
protection of a right, or the prevention or redress of a wrong. It is a non-
litigious proceeding authorized in an extrajudicial foreclosure of
mortgage pursuant to Act No. 3135, as amended. It is a proceeding where
the relief is granted without an opportunity for the person against whom
the relief is sought to be heard. No notice is needed to be served upon
persons interested in the subject property. Hence, there is no necessity
of giving notice to the petitioners since they had already lost all their
interests in the property when they failed to redeem the same.

o Second. 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 execution. The right of the purchaser to have possession of the subject
property would not be defeated notwithstanding the pendency of a civil
case seeking the annulment of the mortgage or of the extrajudicial
foreclosure.

The court has consistently ruled that it is the ministerial duty of the court to issue
writ of possession in favor of the purchaser in a foreclosure sale. The trial court
has no discretion on this matter.

(3) Issuance of injunctive writs should ne avoided

Courts should avoid issuing writs of preliminary injunction which would in


effect dispose of the main case without trial. Instead of securing the writ, the
petitioners can register notice of lis pendens over titles to the properties which
notice will bind any prospective buyer to the outcome of the civil case pending
before the court.

(4) Issuance of writ not ministerial where third party is in adverse possession or is not
privy to debtor

General Rule: Purchases in a public auction sale of a foreclosed property is


entitled to a writ of possession, and upon an ex parte petition of the purchaser, it
is ministerial upon the trial court to issue the write of possession.

Exception: a third party not privy to the debtor is protected by the law. He may
be ejected from the premises only after he has been given an opportunity to be
heard, conformably with the time-honored principle of due process. Where a
parcel of land levied on execution is occupied by a party other than the judgment
debtor, the proper procedure is for the court to order a hearing to determine the
nature of said adverse possession
While the rule is that the purchaser in a foreclosure sale of mortgaged property is
entitled to a writ of possession and that upon an ex parte petition of the
purchaser, it is ministerial upon the court to issue such writ of possession in
favor of the purchaser, the rule is not an unqualified one.

As held in Glapuno v. Gapulotos, the possession of property is given to a


purchaser in extrajudicial foreclosures unless a third party is actually holding
the property adversely to the judgment debtor.

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