Writ of Possession in Extrajudicial Foreclosure: No Certification Against Forum Shopping Required

In a significant ruling for banks and other purchasers of foreclosed properties, the Supreme Court clarified that an ex parte petition for a writ of possession under Act No. 3135 is not an initiatory pleading. This means that a certification against forum shopping is not required. The case of Metropolitan Bank & Trust Company v. Hon. Salvador Abad Santos and Manfred Jacob De Koning (G.R. No. 157867, December 15, 2009) provides clear guidance on this procedural point.

The Facts of the Case

Manfred Jacob De Koning obtained a loan from Metrobank, secured by a real estate mortgage over a condominium unit in Makati City. When De Koning defaulted, Metrobank extrajudicially foreclosed the mortgage. Metrobank was the highest bidder at the auction and a Certificate of Sale was issued in its favor.

After the redemption period lapsed without De Koning redeeming the property, Metrobank filed an ex parte petition for a writ of possession with the Regional Trial Court of Makati City. The petition was filed pursuant to Section 7 of Act No. 3135, as amended.

However, De Koning's counsel appeared at the hearing and moved to dismiss the petition. He argued that Metrobank's petition violated Section 5, Rule 7 of the Rules of Court, which requires a certification against forum shopping to be attached to a complaint or other initiatory pleading. De Koning pointed out that he had previously filed cases against Metrobank questioning the foreclosure, and Metrobank failed to disclose these in its certification.

The RTC agreed with De Koning and dismissed Metrobank's petition. The Court of Appeals affirmed this dismissal. Metrobank then elevated the matter to the Supreme Court.

The Issue

The central issue was whether an ex parte petition for a writ of possession in an extrajudicial foreclosure is an initiatory pleading that requires a certification against forum shopping under Section 5, Rule 7 of the Rules of Court.

The Supreme Court's Ruling

The Supreme Court ruled in favor of Metrobank, reversing the lower courts' decisions. The Court held that a petition for a writ of possession under Section 7 of Act No. 3135 is not an initiatory pleading.

A Petition That Is Really a Motion

The Court explained that although the pleading is denominated as a "petition," it is in substance a mere motion. What distinguishes a motion from a petition is not its form or title, but its purpose. A motion does not initiate new litigation; it brings a material but incidental matter arising in the progress of a case.

An application for a writ of possession is a mere incident in the registration proceeding. Since it is not an initiatory pleading, the requirement of a certification against forum shopping does not apply.

The Ex Parte Nature of the Proceeding

The Court also emphasized that the proceeding for a writ of possession under Section 7 of Act No. 3135 is ex parte in nature. It is taken at the instance and for the benefit of one party only, without notice to, or contestation by, any person adversely interested.

Given this nature, the lower court erred when it notified De Koning of the petition, allowed him to participate, and upheld his motion to dismiss. The Court cited its earlier ruling in GSIS v. Court of Appeals, which discussed the inappropriateness of intervention in such summary proceedings.

The Right to Possession Follows Ownership

The Court reiterated that the right to possess a property follows the right of ownership. After 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 a ministerial function.

The purchaser need not file a separate and independent suit for possession. The mere filing of an ex parte motion for the issuance of the writ suffices.

Practical Takeaways

• No certification required: A petition for a writ of possession in an extrajudicial foreclosure under Section 7 of Act No. 3135 is not an initiatory pleading. A certification against forum shopping is not required.
• Ex parte proceeding: The proceeding is ex parte in nature. The mortgagor is not entitled to intervene or participate in the proceedings.
• Writ is a matter of right: After the redemption period lapses and title is consolidated in the purchaser's name, the issuance of a writ of possession is ministerial and a matter of right.
• No separate suit needed: The purchaser in an extrajudicial foreclosure need not file a separate action for possession. An ex parte motion or petition suffices.
• Remedy against erroneous dismissal: If a court erroneously dismisses a petition for a writ of possession, a petition for certiorari may be an appropriate remedy where the dismissal is patently erroneous and contravenes existing jurisprudence.

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