GR 157660; (August, 2008) (Digest)
G.R. No. 157660 ; August 29, 2008
ELIGIO P. MALLARI, petitioner, vs. BANCO FILIPINO SAVINGS & MORTGAGE BANK, respondent.
FACTS
Petitioner Eligio P. Mallari obtained a loan from respondent Banco Filipino, secured by a real estate mortgage over a parcel of land. Due to his failure to pay, the bank extrajudicially foreclosed the mortgage. The bank emerged as the highest bidder at the public auction, and the corresponding Certificate of Sale was annotated on the title on May 20, 1999. Petitioner failed to redeem the property within the one-year redemption period, which expired on May 20, 2000. Consequently, the bank consolidated its ownership, leading to the cancellation of petitioner’s title and the issuance of a new one in the bank’s name on August 30, 2000.
Thereafter, the bank filed an ex-parte petition for a writ of possession with the Regional Trial Court (RTC). Petitioner opposed, citing a pending action for the declaration of nullity of the foreclosure proceedings which he had filed earlier. The RTC granted the bank’s petition. Petitioner’s motion for reconsideration was denied. He then filed a petition for certiorari with the Court of Appeals (CA), which dismissed it, ruling that the issuance of the writ was a ministerial duty of the court and that the proper remedy was an appeal, not certiorari.
ISSUE
Whether the Court of Appeals erred in dismissing the petition for certiorari and in upholding the RTC’s grant of the writ of possession.
RULING
The Supreme Court denied the petition and affirmed the CA’s decision. On the procedural issue, the Court held that certiorari under Rule 65 was not the proper remedy. The essential requisites for certiorari were not met, particularly the lack of a plain, speedy, and adequate remedy in the ordinary course of law. An appeal was available to petitioner under Section 8 of Act No. 3135 , as amended. The Court found no compelling reason, such as involving public welfare or an oppressive exercise of authority, to deviate from the rule that appeal is the appropriate recourse from an order granting a writ of possession in extrajudicial foreclosure.
On the substantive issue, the Court ruled that the RTC correctly issued the writ of possession. After the redemption period expired and the bank consolidated its title, its right to possession ripened into an absolute right of a confirmed owner. At that point, the issuance of a writ of possession upon proper application becomes a ministerial duty of the court. The pendency of a separate action questioning the validity of the foreclosure sale does not divest the court of its ministerial duty to issue the writ. The proper remedy for the mortgagor is to file a petition to set aside the sale and cancel the writ within the same proceedings, as provided under Section 8 of Act No. 3135 . Therefore, the RTC committed no grave abuse of discretion.