G.R. No. 169190; February 11, 2010
CUA LAI CHU, CLARO G. CASTRO, and JUANITA CASTRO, Petitioners, vs. HON. HILARIO L. LAQUI, Presiding Judge, Regional Trial Court, Branch 218, Quezon City and PHILIPPINE BANK OF COMMUNICATION, Respondents.

FACTS

In November 1994, petitioners obtained a loan of ₱3,200,000 from respondent Philippine Bank of Communication, secured by a Real Estate Mortgage over property covered by TCT No. 22990. In August 1997, the loan was increased to ₱5,000,000. Upon petitioners’ default, the bank applied for extrajudicial foreclosure. Petitioners filed a petition to annul the foreclosure sale (Q-02-46184) and obtained a TRO, but the sale was later reset and proceeded on May 29, 2002, with the bank as the highest bidder. The certificate of sale was registered on June 7, 2002. After the one-year redemption period lapsed, the bank consolidated its ownership, and TCT No. 22990 was cancelled and replaced with TCT No. 251835 in the bank’s name on July 8, 2003. On August 18, 2004, the bank applied for a writ of possession. The trial court granted the bank’s motion for a declaration of general default, allowed ex parte presentation of evidence, and denied petitioners’ notice of appeal. The Court of Appeals dismissed petitioners’ certiorari petition, citing procedural grounds (counsel’s failure to indicate an updated PTR Number) and substantive grounds, ruling the writ of possession proceeding was ex parte and not barred by the pending annulment case.

ISSUE

Whether the writ of possession was properly issued despite the pendency of a case questioning the validity of the extrajudicial foreclosure sale and despite petitioners being declared in default in the writ of possession proceeding.

RULING

Yes, the writ of possession was properly issued. The petition has no merit.
1. Right to a Writ of Possession: Under Section 7 of Act No. 3135, as amended, the purchaser at an extrajudicial foreclosure sale is entitled to a writ of possession. During the redemption period, this right can be obtained upon filing an indemnity bond. After the lapse of the redemption period with no redemption made, the right becomes absolute and may be demanded ex parte without a bond. In this case, the redemption period lapsed on June 7, 2003. When the bank applied for the writ on August 18, 2004, its right was absolute. Furthermore, upon consolidation of ownership and issuance of a new title in the bank’s name (TCT No. 251835), the issuance of the writ becomes a ministerial duty of the court upon proper application and proof of title.
2. Nature of the Proceeding and Due Process: The application for a writ of possession is an ex parte proceeding. Once the statutory requirements are fulfilled, the court has no discretion and must issue the writ. Petitioners’ opposition and their being declared in default did not violate due process, as they have no right to be heard in such an ex parte proceeding. Their remedy is under Section 8 of Act No. 3135, to petition to set aside the sale and cancel the writ within thirty days after the purchaser is given possession, based on specific grounds.
3. Effect of Pending Annulment Case: The pendency of a separate case (Q-02-46184) questioning the validity of the extrajudicial foreclosure sale does not bar the issuance of the writ of possession. The writ may be issued even pending such a proceeding.
4. Forum Shopping: There is no forum shopping. The issuance of a writ of possession ex parte is not a judgment on the merits that can amount to res judicata, an essential element of forum shopping.
The Court of Appeals’ dismissal of the petition for certiorari is affirmed.