• File a petition for the issuance of a writ of possession

    3
    Persida Acosta

    Persida Acosta

    Dear PAO,
    I bought a house and lot through an auction sale where I ended up as the highest bidder. The house and lot was mortgaged and was extra-judicially foreclosed. One year after the registration of the Certificate of Sale, no redemption was made by the former owner. I was told that the title of the land will be transferred in my name. However, the former owner is still in possession of the house and lot and despite repeated demand, he still refuses to vacate the house. What shall I do? Do I need to file an ejectment case against him?
    Godfrey    

    Dear Godfrey,
    The law is clear that in an extra-judicial foreclosure sale, after the lapse of the one year period within which to redeem the property and no redemption was made, the buyer becomes the absolute owner thereof (Section 6, Act No 3135 as amended by Act No. 4118).

    Being the absolute owner of the house and lot mentioned in your letter, you have the right to use the same to the exclusion of others. Since the former owner refuses to leave and vacate the property, there is no need to file a civil action for ejectment. You just have to file a Petition for the Issuance of a Writ of Possession. In the case of Spouses Fernando and Angelina Edralin vs. Philippine Veterans Bank (G.R. No. 168523, March 9, 2011), the Supreme Court explicitly explained this, to wit:

    “The issuance of a writ of possession is outlined in Section 7 of Act No. 3135, as amended by Act No. 4118, which provides:

    SEC. 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of First Instance 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 x x x 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.

    During the period of redemption, the mortgagee is entitled to a writ of possession upon depositing the approved bond. When the redemption period expires without the mortgagor exercising his right of redemption, the mortgagor is deemed to have lost all interest over the foreclosed property, and the purchaser acquires absolute ownership of the property. The purchaser’s right is aptly described thus:

    Consequently, the purchaser, who has a right to possession after the expiration of the redemption period, becomes the absolute owner of the property when no redemption is made. In this regard, the bond is no longer needed. The purchaser can demand possession at any time following the consolidation of ownership in his name and the issuance to him of a new TCT. After consolidation of title in the purchaser’s name for failure of the mortgagor to redeem the property, the purchaser’s right to possession ripens into the absolute right of a confirmed owner. At that point, the issuance of a writ of possession, upon proper application and proof of title becomes merely a ministerial function. Effectively, the court cannot exercise its discretion.

    Therefore, the issuance by the RTC of a writ of possession in favor of the respondent in this case is proper. We have consistently held that the duty of the trial court to grant a writ of possession in such instances is ministerial, and the court may not exercise discretion or judgment x x x

    With the consolidated title, the purchaser becomes entitled to a writ of possession and the trial court has the ministerial duty to issue such writ of possession. xxx”

    It is clear that being the absolute owner,     in order to recover the possession of the property which is being occupied by the former owner/mortgagor, you will just need to file a petition in court praying for the issuance of a writ of possession. Once the writ is issued, the mortgagor can be evicted from the property.

    Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

    We hope that we were able to enlighten you on the matter.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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    3 Comments

    1. Atty. Roslee M. Formoso on

      Clarification: Right of redemption is exercised for12 months or one year from the notice from the court or affidavit. Upon the expiration of 12 months or one year and the borrower failed to exericise such right, the lender shall petition the court to have the property auctioned. Court Sheriff shall conduct the sale and issue a certificate of final sale.

    2. Atty. Roslee M. Formoso on

      In a foreclosure whether judicial or extrajudicial the right of redemption is exercised after the lapsed of 12 months from the execution of the affidavit if extrajudicial or one year from notice of foreclosure from the court if it is judicial. After the lapse of 12 months the bank or lender shall apply for the sale in auction to be conducted by the sheriff. Complete auction sale by the sheriff, a certificate of sale -final sale is issued.

      When the defaulted borrower is still in the premises, and the lender choses to evict him, it is not needed or necessary to file or apply for the receipt in court of a supersedeas bond, because the sale is already a FINAL SALE. And the defaulted overstaying borrower is regarded as “squatter” or “illegal occupant”. Meaning of a supersedeas bond is when the intended evicted occupant is fighting for some right. While in the case of foreclosure, after the right of redemption, auction sale, certificate of sale, the overstaying borrower absolutely loses any right whatsoever or have none standing before the law to fight for some protection.

    3. Atty. Roslee M. Formoso on

      Your facts appears to be muddled, right of redemption happens one year before the sheriff conducts the auction and once the auction by the sheriff is completed the certificate of sale is a final sale. What right of redemption are you talking about after the certificate of sale? My answer applies to Bank foreclosure.

      Auction because of tax delinquency then after auction the delinquent realty owner have a right of redemption.