LAM V. METROBANK (CIVIL)

It is settled that the issuance of a WRIT OF POSSESSION to a purchaser in a public auction is a ministerial act. After the consolidation of title in the buyer's name for failure of the mortgagor to redeem the property, entitlement to the writ of possession becomes a matter of right. Its issuance to a purchaser in an extrajudicial foreclosure sale is merely a ministerial function. It is undisputed that herein petitioners failed to redeem the property within the redemption period and thereafter, ownership was consolidated in favor of herein respondent and a new certificate of title was issued in its name. Thus, it was a purely ministerial duty for the trial court to issue a writ of possession in favor of the herein respondent upon the latter's filing of a petition.

As to the nature of a petition for a writ of possession, it is well to state that the proceeding in a petition for a writ of possession is EX PARTE and summary in nature. It is a judicial proceeding brought for the benefit of one party only and without notice by the court to any person adverse of interest. It is a proceeding wherein relief is granted without giving the person against whom the relief is sought an opportunity to be heard.

By its very nature, an ex parte petition for issuance of a writ of possession is a non-litigious proceeding authorized under Act No 3135 as amended.

It is not strictly a judicial process as contemplated in Article 433 of the Civil Code. It is a judicial proceeding for the enforcement of one's right of possession as purchaser in a foreclosure sale. It is not an ordinary suit in court, by which one party "sues another for the enforcement of a wrong or protection of a right, or the prevention of redress of a wrong."

The law does not require that a petition for a writ of possession may be granted only after documentary and testimonial evidence shall have been offered to and admitted by the court. As long as a verified petition states the facts sufficient to entitle the petitioner to the relief requested, the court shall issue the writ prayed for. The petitioner need not offer any documentary or testimonial evidence for the court to grant the petition.

The fact the the Spouses Law were allowed to actively participate in the proceedings for the said case, by filing an Answer and going through pre-trial and mediation, was a glaring procedural anomaly that the court a quo had inexcusably abetted. We cannot allow the erring court a quo to use that same aberration as an excuse for a continuing defiance of the law and jurisprudence that defines a petition for the issuance of a writ of possession as a non-litigious ex parte proceeding that does not require the participation of the mortgagor.