GR 178330; (July, 2009) (Digest)
G.R. No. 178330; July 23, 2009
MARTIN T. SAGARBARRIA, Petitioner, vs. PHILIPPINE BUSINESS BANK, Respondent.
FACTS
Petitioner Martin Sagarbarria executed a real estate mortgage over his property to secure a loan for Key Commodities Inc. from respondent Philippine Business Bank (PBB). Upon the loan’s default, PBB initiated extrajudicial foreclosure. Sagarbarria filed a complaint for annulment of the mortgage and injunction (Civil Case No. 03-312), prompting PBB to withdraw its initial foreclosure application. While the annulment case was pending, PBB filed a new petition for extrajudicial foreclosure in 2005. The auction sale proceeded, with PBB as the winning bidder. After the redemption period lapsed and title was consolidated, PBB secured a writ of possession from the RTC.
Sagarbarria challenged the writ via a petition for certiorari in the CA, arguing the foreclosure was invalid due to lack of proper notice and that PBB engaged in forum-shopping by pursuing foreclosure while the annulment case was pending. The CA dismissed the petition, ruling the writ was a ministerial issuance and certiorari was an improper remedy. This Court initially denied Sagarbarria’s petition. He now seeks reconsideration.
ISSUE
Whether the Court of Appeals erred in dismissing the petition for certiorari which assailed the issuance of the writ of possession.
RULING
The petition for reconsideration is denied. The CA correctly dismissed the certiorari petition. The issuance of a writ of possession to a purchaser in an extrajudicial foreclosure sale, after consolidation of title, is a ministerial duty of the court. The pendency of a separate action for annulment of the mortgage does not bar this issuance, as the writ of possession proceeding is ex parte and summary. The right to possession is a consequential benefit of the consolidated title.
Furthermore, Sagarbarria availed of the wrong remedy. A petition for certiorari under Rule 65 is not the proper recourse to challenge the issuance of the writ. Section 8 of Act No. 3135 provides the specific and adequate remedy: a petition to set aside the sale and cancel the writ of possession within thirty days after the purchaser obtains possession. This statutory remedy is plain, speedy, and adequate. Certiorari is only permissible when there is no appeal or any such adequate remedy, which is not the case here. Sagarbarria’s allegations of procedural defects in the foreclosure, such as improper notice, should have been raised in a separate proceeding under Act No. 3135, not via a collateral attack in a certiorari proceeding assailing the ministerial writ.