Legal Opinion Writ of Possession

LEGAL OPINION RE: WRIT OF POSSESSION AFTER
FORECLOSURE SALE
Prefaratory Statement
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Legal Opinion
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 purchasers 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 purchasers name for failure of the mortgagor to
redeem the property, the purchasers 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 1.
A writ of possession
may also be issued after
consolidation
of
ownership
of
the
property in the name of
the purchaser.
A writ of possession is a writ of execution employed to enforce
a judgment to recover the possession of land. It commands the
sheriff to enter the land and give possession of it to the person
entitled under the judgment.[20] It may be issued in case of an
extrajudicial foreclosure of a real estate mortgage under Section 7 of
Act No. 3135, as amended by Act No. 4118.[21]
Under said provision, the writ of possession may be issued
to the purchaser in a foreclosure sale either within the oneyear redemption period upon the filing of a bond, or after the
lapse of the redemption period, without need of a bond.[22]
1 http://www.manilatimes.net/file-petition-issuance-writ-possession/118477/
We have consistently held that the duty of the trial court to

grant a writ of possession is ministerial. Such writ issues as a
matter of course upon the filing of the proper motion and the
approval of the corresponding bond. No discretion is left to the trial
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[23]
of Act No. 3135. Such question cannot be raised to oppose the
issuance of the writ, since the proceeding is ex parte. The recourse
is available even before the expiration of the redemption period
provided by law and the Rules of Court.[24]
To emphasize the writs ministerial character, we have in
previous cases disallowed injunction to prohibit its issuance, just as
we have held that issuance of the same may not be stayed by a
pending action for annulment of mortgage or the foreclosure itself.
[25]
A writ of possession may also be issued after
consolidation of ownership of the property in the name of the
purchaser. 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.
Hence, he is entitled to the possession of the property and can
demand it at any time following the consolidation of ownership in
his name and the issuance to him 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. 2
2 http://attylaserna.blogspot.com/2014/02/redemption-period-writ-of-possessiongr.html
One cannot oppose or

appeal the courts order
granting the writ of
possession in an ex
parte proceeding
The remedy of petitioners is to have the sale set aside and the
writ of possession cancelled in accordance with Section 8 of Act No.
3135, as amended, to wit:
SEC. 8. The debtor may, in the
proceedings in which possession was
requested, but not later than thirty days
after the purchaser was given possession,
petition that the sale be set aside and the
writ of possession cancelled, specifying
the damages suffered by him, because
the mortgage was not violated or the sale
was not made in accordance with the
provisions hereof. x x x
Any question regarding the validity of the extrajudicial
foreclosure sale and the resulting cancellation of the writ may be
determined in a subsequent proceeding as outlined in Section 8 of
Act No. 3135, as amended. Such question should not be raised as a
justification for opposing the issuance of a writ of possession since
under Act No. 3135, as amended, the proceeding for this is ex
parte.
Further, the 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. The latter is
not a bar to the former. Even pending such latter proceeding, the
purchaser at a foreclosure sale is entitled to the possession of the

foreclosed property.3
NBSB: (Nota
whut?)
Bene
Since
Birth.lol
say
If within redemption period - by motion

If after lapse of redemption period by
petition (I think)
3 http://sc.judiciary.gov.ph/jurisprudence/2010/february2010/169190.htm
No. 169190
G.R.

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LEGAL OPINION RE: WRIT OF POSSESSION AFTER

absolute owner thereof

order that a writ of possession issue,

With the consolidated title, the purchaser becomes

We have consistently held that the duty of the trial court to

One cannot oppose or

purchaser at a foreclosure sale is entitled to the possession of the

If within redemption period - by motion

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