Possession Is Nine Tenths of the Law: Enforceability of a Writ of Possession During Appeal

In extrajudicial foreclosures, borrowers often hope that an appeal will delay or stop their eviction from the foreclosed property. The Supreme Court's 2009 ruling in Motos v. Real Bank clarifies this misconception: a writ of possession remains enforceable during the pendency of an appeal. This decision underscores the ministerial duty of courts to issue such writs and the limited remedies available to defaulting mortgagors.

Facts of the Case

Spouses Martin and Gloria Motos obtained loans totaling P4,000,000 from Real Bank, secured by a real estate mortgage over their land covered by TCT No. 116759. When they defaulted, the bank extrajudicially foreclosed the mortgage under Act No. 3135, as amended. Real Bank emerged as the highest bidder at the auction sale, and a Certificate of Sale was issued on December 2, 1998.

After the one-year redemption period lapsed without the spouses redeeming the property, Real Bank consolidated its title and a new TCT was issued in its name. The bank then filed an ex parte petition for a writ of possession with the Regional Trial Court (RTC) of Quezon City. The RTC granted the petition on January 29, 2002, and a writ of possession was subsequently issued.

The spouses refused to vacate and filed a Motion to Quash the Writ of Possession, arguing they were not heard on the petition. The RTC denied their motion. Their subsequent Notice of Appeal was denied due course, prompting them to elevate the matter to the Court of Appeals via certiorari.

The Issue

The central question before the Supreme Court was whether a writ of possession can be enforced while an appeal is pending. The Court also examined two related issues: whether a writ of possession may be issued ex parte, and whether an order denying a motion to quash is appealable.

The Ruling

The Supreme Court denied the petition, affirming with modification the Court of Appeals' decision. The Court ruled that the RTC did not commit grave abuse of discretion in issuing the writ of possession.

Writ of Possession in Extrajudicial Foreclosure

Under Act No. 3135, the purchaser of a foreclosed property may petition the court for a writ of possession. This petition is in the nature of an ex parte motion — it may be granted without notice to or consent from the mortgagor. The Court emphasized that it is ministerial upon the court to issue the writ once the proper motion is filed and the bond is approved, provided no third person is involved.

After the redemption period expires, the purchaser's right to possession becomes absolute. At this point, the purchaser is the confirmed owner, and no bond is even necessary.

The Proper Remedy Under Act No. 3135

The Court clarified that the spouses erred in filing a Motion to Quash. The proper remedy under the law is a petition to set aside the sale and cancel the writ of possession. This petition must be filed within thirty days after the purchaser is given possession.

Critically, the law provides that even when an appeal is taken from an order denying such a petition, the order of possession shall continue in effect during the pendency of the appeal. This means that the sheriff can enforce the writ and place the purchaser in possession while the appeal is ongoing.

The Appealability of Interlocutory Orders

The Court also addressed the procedural misstep of the spouses. An order denying a motion to quash a writ of possession is interlocutory — it does not completely dispose of the case. Under the Rules of Court, no appeal may be taken from an interlocutory order. The proper remedy for an aggrieved party is a special civil action under Rule 65, not an ordinary appeal.

Practical Takeaways

• After the redemption period expires, the purchaser in an extrajudicial foreclosure is entitled to a writ of possession as a matter of right; the court has no discretion to deny it.
• A petition for a writ of possession under Act No. 3135 is ex parte; the mortgagor is not entitled to notice or a hearing.
• The mortgagor's remedy is a petition to set aside the sale, filed within thirty days of possession being given to the purchaser.
• Even if the mortgagor appeals an adverse ruling, the writ of possession remains enforceable during the appeal. Filing an appeal does not automatically stay the eviction.
• A motion to quash a writ of possession is not the proper remedy, and the denial of such a motion is an interlocutory order that cannot be appealed.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.