G.R. No. 188069, June 17, 2015
REYNALDO P. BASCARA, Petitioner, vs. SHERIFF ROLANDO G. JAVIER and EVANGELINE PANGILINAN, Respondents.

FACTS

Respondent Evangeline Pangilinan filed an ex parte petition for a writ of possession after the extrajudicial foreclosure of a real estate mortgage executed by Rosalina P. Pardo on August 13, 2004, to secure a loan. The property was sold at public auction to Pangilinan as the highest bidder, the redemption period expired, and title was consolidated in her name. The trial court granted the petition and issued the writ. Petitioner Reynaldo P. Bascara filed a motion to recall the writ, claiming ownership through a donation mortis causa from his aunt, Rosalina P. Pardo, who died on May 20, 2003. He alleged that the real estate mortgage was void because Pardo was already deceased at the time of its purported execution on August 13, 2004, and that the signatures were forged by his former boarder, Evangeline Cacalda. Bascara had filed an adverse claim on the title, a complaint for estafa, and a separate action for annulment of title and damages. The trial court denied his motion to recall the writ, and the Court of Appeals affirmed, holding that the issuance of a writ of possession is a ministerial duty in extrajudicial foreclosure and any question on the validity of the sale should be determined in a subsequent proceeding.

ISSUE

Whether the trial court and the Court of Appeals erred in denying the motion to recall the writ of possession and in ordering its implementation despite petitioner’s claim of ownership and allegations of a void mortgage due to the mortgagor’s death prior to the execution of the deed.

RULING

The Supreme Court denied the petition. The issuance of a writ of possession to a purchaser in an extrajudicial foreclosure sale is a ministerial duty of the court. The writ issues as a matter of course upon the filing of the proper motion and the approval of the corresponding bond, without any discretion to look into the validity of the mortgage or the regularity of the foreclosure sale. The purchaser’s right to possession is based on their right of ownership as the highest bidder. Any question regarding the validity of the sale or the mortgage must be raised in a separate proceeding, as provided under Section 8 of Act No. 3135, as amended. The pendency of an action for annulment of title does not justify the recall or stay of the writ. Furthermore, the Court noted that petitioner’s claim of ownership via a donation mortis causa was dubious, as such a donation partakes of the nature of a will and must comply with the formalities of a notarial will under the Civil Code, which was not shown. The proper remedy for the petitioner was a separate action to annul the mortgage and the foreclosure sale, not a motion to recall the writ of possession.