G.R.No.178288.August15,2012.

SPOUSES CHARLIE FORTALEZA and OFELIA

FORTALEZA,petitioners,vs.SPOUSESRAULLAPITAN
andRONALAPITAN,respondents.
Raffle of Cases; Internal Rules of the Court of Appeals (IRCA);
The tworaffle system is already abandoned under the 2009
Internal Rules of the Court of Appeals (IRCA). As the rule now
stands, the Justice to whom a case is raffled shall act on it both at
the completion stage and for the decision on the merits.True,
under the 2002 Internal Rules of the Court of Appeals (IRCA),
appealedcivilcasesundergotworafflesystem.First,apreliminary
raffle is held to determine the Justice to whom the case will be
assignedforcompletionofrecords.Aftercompletion,asecondraffle
is conducted to determine the Justice to whom the case will be
assigned for study and report. Each stage is distinct [and] it may
happen that the Justice to whom the case was initially raffled for
completionmaynotbethesameJusticewhowillwritethedecision
thereon.xxxHowever,thetworafflesystemisalreadyabandoned
underthe2009IRCA.Astherulenowstands,theJusticetowhom
acaseisraffledshallactonitbothatthecompletionstageandfor
thedecisiononthemerits.
Foreclosure of Mortgage; Writs of Possession; The duty of the
trial court to grant a writ of possession in such instances is
ministerial, and the court may not exercise discretion or
judgment.Thepurchaserinaforeclosuresalemayapplyforawrit
of possession during the redemption period. Notably, in this case,
the oneyear period for the spouses Fortaleza to redeem the
mortgagedpropertyhadalreadylapsed.Furthermore,ownershipof
the subject property had already been consolidated and a new
certificate of title had been issued under the name of the spouses
Lapitan. Hence, as the new registered owners of the subject
property,theyareevenmoreentitledtoitspossessionandhavethe
unmistakable right to file an ex parte motion for the issuance of a
writ of possession. As aptly explained in Edralin v. Philippine
Veterans Bank, 645 SCRA 75 (2011), the duty of the trial court to
grantawritofpossessioninsuchin
_______________
*FIRSTDIVISION.

470

470

SUPREMECOURTREPORTSANNOTATED
Fortaleza vs. Lapitan

stances is ministerial, and the court may not exercise discretion or

judgment

Same; Same; Any question regarding the regularity and

validity of the mortgage or its foreclosure cannot be raised as a
justification for opposing the petition for the issuance of the writ of
possession; The judge with whom an application for writ of
possession is filed need not look into the validity of the mortgage or
the manner of its foreclosure.We agree with the CA that any
questionregardingtheregularityandvalidityofthemortgageorits
foreclosure cannot be raised as a justification for opposing the
petition for the issuance of the writ of possession. The said issues
mayberaisedanddeterminedonlyaftertheissuanceofthewritof
possession. Indeed, [t]he judge with whom an application for writ
ofpossessionisfiledneednotlookintothevalidityofthemortgage
or the manner of its foreclosure. The writ issues as a matter of
course.Therationalefortheruleistoallowthepurchasertohave
possessionoftheforeclosedpropertywithoutdelay,suchpossession
being founded on the right of ownership. To underscore this
mandate,Section8ofActNo.3135givesthedebtormortgagorthe
righttofileapetitionforthesettingasideoftheforeclosuresaleand
for the cancellation of a writ of possession in the same proceedings
where the writ was issued within 30 days after the purchaser
mortgagee was given possession. The courts decision thereon may
be appealed by either party, but the order of possession shall
continueineffectduringthependencyoftheappeal.
Same; Same; Until the foreclosure sale of the property in
question is annulled by a court of competent jurisdiction, the
issuance of a writ of possession remains the ministerial duty of the
trial court.Clearlythen,untiltheforeclosuresaleoftheproperty
in question is annulled by a court of competent jurisdiction, the
issuanceofawritofpossessionremainstheministerialdutyofthe
trialcourt.Thesameistruewithitsimplementation;otherwise,the
writ will be a useless paper judgmenta result inimical to the
mandate of Act No. 3135 to vest possession in the purchaser
immediately.
Same; Same; Family Home; The family home is exempt from
execution, forced sale or attachment, except for debts secured by
mortgages on the premises before or after such constitution.As a
rule, the family home is exempt from execution, forced sale or
attachment.However,Article155(3)oftheFamilyCodeexplicitly
471

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471

Fortaleza vs. Lapitan

allows the forced sale of a family home for debts secured by
mortgages on the premises before or after such constitution.Inthis
case, there is no doubt that spouses Fortaleza voluntarily executed
on January 28, 1998 a deed of Real Estate Mortgage over the
subjectpropertywhichwasevennotarizedbytheiroriginalcounsel
of record. And assuming that the property is exempt from forced
sale,spousesFortalezadidnotsetupandprovetotheSheriffsuch
exemptionfromforcedsalebeforeitwassoldatthepublicauction.
Same; Redemption; An action to redeem filed within the period
of redemption, with a simultaneous deposit of the redemption money
tendered to the sheriff, is equivalent to an offer to redeem and has
the effect of preserving the right to redemption for future

enforcement even beyond the oneyear period.Equally without

merit is spouses Fortalezas reliance on the cases of Tolentino and
De Los Reyes in praying for the exercise of the right of redemption
even after the expiration of the oneyear period. In Tolentino, we
heldthatanactiontoredeemfiledwithintheperiodofredemption,
with a simultaneous deposit of the redemption money tendered to
thesheriff,isequivalenttoanoffertoredeemandhastheeffectof
preserving the right to redemption for future enforcement even
beyond the oneyear period. And in De Los Reyes, we allowed the
mortgagor to redeem the disputed property after finding that the
tender of the redemption price to the sheriff was made within the
oneyearperiodandforasufficientamount.

PETITION for review on certiorari of the decision and

resolutionoftheCourtofAppeals.
ThefactsarestatedintheopinionoftheCourt.
Edilberto B. Coscaforpetitioners.
Angelita S. Gramajeforrespondents.
DELCASTILLO,J.:
Unlessacasefallsunderrecognizedexceptionsprovided
by law and jurisprudence, courts should maintain the ex
parte,nonadversarial,summaryandministerialnatureof
theissuanceofwritofpossession.
472

472

SUPREMECOURTREPORTSANNOTATED
Fortaleza vs. Lapitan

AssailedinthisPetitionforReviewonCertiorari1under
Rule45ortheRulesofCourtistheDecision2oftheCourtof
Appeals (CA) dated January 10, 2007 in CAG.R. CV No.
86287 which affirmed the Order3 of the Regional Trial
Court(RTC)ofCalambaCity,Branch35,datedSeptember
16, 2005 in SLRC Case No. 25282004C granting an ex
partepetitionfortheissuanceofwritofpossession.Likewise
assailed is the CA Resolution4 dated June 6, 2007 which
deniedtheMotionforReconsideration5ofthesaidassailed
Decision.
Factual Antecedents
SpousesCharlieandOfeliaFortaleza(spousesFortaleza)
obtainedaloanfromspousesRolandoandAmparoLapitan
(creditors) in the amount of P1.2 million subject to 34%
interestper annum.Assecurity,spousesFortalezaexecuted
onJanuary28,1998aDeedofRealEstateMortgage6over
their
_______________
1Rollo,pp.1142.
2 CA Rollo, pp. 337346; penned by Associate Justice Ramon R.
GarciaandconcurredinbyAssociateJusticesJosefinaGuevaraSalonga
andVicenteQ.Roxas.
3Rollo,pp.8589;pennedbyJudgeRomeoC.deLeon.
4CARollo,pp.388389.
5Id.,atpp.349368.
6Rollo,pp.166167.RealEstateMortgage:
That the MORTGAGORS hereby acknowledge being indebted unto

the MORTGAGEE[S] in the total sum of ONE MILLION TWO

HUNDRED THOUSAND PESOS (P1,200,000.00) x x x which debt the
MORTGAGORS undertake and promise to pay to the [MORTGAGEE]
within a period of SIX MONTHS from signing hereof, without need of
demand, with an interest at the bank rate of 34%. Provided that if the
MORTGAGORS fail to pay their indebtedness when due, the
MORTGAGEE[S]mayextendtheperiodofpaymentforanotherSIX(6)
MONTHS, on the condition that the MORTGAGORS will pay the
accruedinterestthereonandpartoftheprincipalloanamount.
473

VOL.678,AUGUST15,2012

473

Fortaleza vs. Lapitan

residential house and lot situated in Barrio Anos,
Municipality of Los Baos, Laguna (subject property)
registered under Transfer Certificate of Title (TCT) No. T
412512.7
When spouses Fortaleza failed to pay the indebtedness
including the interests and penalties, the creditors applied
for extrajudicial foreclosure of the Real Estate Mortgage
beforetheOfficeoftheClerkofCourtandExOfficioSheriff
ofCalambaCity.ThepublicauctionsalewassetonMay9,
2001.
At the sale, the creditors son Dr. Raul Lapitan and his
wifeRona(spousesLapitan)emergedasthehighestbidders
withthebidamountofP2.5million.Then,theywereissued
aCertificateofSale8whichwasregisteredwiththeRegistry
ofDeedsofCalambaCityandannotatedatthebackofTCT
No. T412512 under Entry No. 615683 on November 15,
2002.9
The oneyear redemption period expired without the
spousesFortalezaredeemingthemortgage.Thus,spouses
_______________
That, as security for the full payment of the above indebtedness of
P1,200,000.00 plus accrued interest, the MORTGAGORS hereby
transfers [sic] and conveys [sic] by way [of] First Mortgage in favor of
the MORTGAGEE[S], [their] heirs and assigns, a certain parcel of land
situated and a residential house both at Bo. Anos, Los Baos, Laguna
embraced under Transfer Certificate of Title No. T412512 and Tax
DeclarationNo.0023789xxx.
xxxx
Provided that if the total indebtedness of P1,200,000.00 plus the
accrued interest is not paid within the specified period of SIX (6)
MONTHSfromsigninghereof,oritsSIX(6)MONTHSextension,then
this mortgage shall be immediately foreclosed either judicially or
extrajudiciallyasprovidedbylawattheoptionoftheMORTGAGEE[S].
For this purpose the MORTGAGEE[S] [are] hereby appointed and
constitutedattorney[s]infactoftheMORTGAGORSwithfullpowerand
authority to take possession of the mortgaged property and sell the
sameatpublicauctionxxx.
7Id.,atpp.160163.
8IssuedonOctober24,2002,id.,atpp.164165.
9Id.,atp.163.
474

474

SUPREMECOURTREPORTSANNOTATED
Fortaleza vs. Lapitan

Lapitanexecutedanaffidavitofconsolidationofownership
onNovember20,2003andcausedthecancellationofTCT
No.T412512andtheregistrationofthesubjectpropertyin
their names under TCT No. T53594510 on February 4,
2004. Despite the foregoing, the spouses Fortaleza refused
spousesLapitansformaldemand11tovacateandsurrender
possessionofthesubjectproperty.
Proceedings before the Regional Trial Court
On August 27, 2004, spouses Lapitan filed an ex parte
petitionfortheissuanceofwritofpossessionwithBranch35
of the RTC of Calamba City docketed as SLRC Case No.
25282004C.12 As new registered owners of the subject
property,spousesLapitanclaimedthattheywereentitledto
its possession pursuant to Section 7 of Act No. 3135,13 as
amendedbyActNo.4118.
In their opposition,14 spouses Fortaleza questioned the
validityoftherealestatemortgageandtheforeclosuresale.
They argued that the mortgage was void because the
creditorsbloatedtheprincipalamountbytheimpositionof
exorbitant interest. Spouses Fortaleza added that the
foreclosureproceedingwasinvalidfornoncompliancewith
thepostingrequirement.
Later,forrepeatedfailureofspousesFortalezatoappear
at the scheduled hearings, the RTC allowed spouses
Lapitantopresentevidenceex parte.
_______________
10 Id.,atp.157.
11DemandLetterdatedAugust17,2004,id.,atp.168.
12Id.,atpp.5761.
13 An Act to Regulate the Sale of Property under Special Powers
Inserted In or Annexed to Real Estate Mortgages. Approved March 6,
1924.
14Rollo,pp.6368.
475

VOL.678,AUGUST15,2012

475

Fortaleza vs. Lapitan

Eventually,onSeptember16,2005,theRTCorderedthe
issuance of a writ of possession explaining that it is a
ministerialdutyofthecourtespeciallysincetheredemption
periodhadexpiredandanewtitlehadalreadybeenissued
inthenameofthespousesLapitan,thus:
WHEREFORE, premises considered, the Opposition with
counterclaim filed by the respondents is denied while this instant
petitionisherebygranted.
Accordingly,theBranchClerkofCourtisherebyorderedtoissue
a Writ of Possession directing the provincial sheriff of Laguna to
place the petitioner in possession of the above described property
freefromanyadverseoccupantsthereof.
SOORDERED.15

SpousesFortalezamovedforreconsideration,16claiming
thatthesubjectpropertyistheirfamilyhomeandisexempt
from foreclosure sale. On October 11, 2005, however, the
RTCissuedanOrder17 denying their motion. Accordingly,
thebranchclerkofcourtissuedtheWritofPossession18and
the sheriff served the corresponding Notice to Vacate19
againstspousesFortaleza.
Proceedings before the Court of Appeals
Dissatisfied, spouses Fortaleza elevated the case to the
CAviaRule41oftheRulesofCourtdocketedasCAG.R.
CV No. 86287. With the perfection of an appeal, the RTC
heldinabeyancetheimplementationofthewrit.20Afterthe
parties
_______________
15Id.,atpp.8889.
16 See Motion for Reconsideration dated September 19, 2005, id., at
pp.9093.
17Id.,atpp.106108.
18Id.,atpp.109110.
19Id.,atp.111.
20SeeOrderdatedOctober26,2005,id.,atp.113.
476

476

SUPREMECOURTREPORTSANNOTATED
Fortaleza vs. Lapitan

submitted their respective briefs, the CA rendered the

assailedDecision21 dated January 10, 2007 dismissing the
appeal:
WHEREFORE, the appeal is hereby DISMISSED. The Order
dated September 16, 2005 of the Regional Trial Court, Branch 35,
CalambaCityinSLRCCaseNo.25282004SC,isAFFIRMED.The
courta quoisDIRECTEDtoenforcetheWritofPossessionitissued
onOctober24,2005.
SOORDERED.22

InaffirmingtherulingoftheRTC,theCAstressedthat
any question regarding the regularity and validity of the
mortgage or its foreclosure cannot be raised as a
justification for opposing the issuance of the writ of
possession since the proceedings is ex parte and non
litigious. Moreover, until the foreclosure sale is annulled,
theissuanceofthewritofpossessionisministerial.
Issues
UnsuccessfulwiththeirquesttohavetheCAreconsider
itsDecision,23spousesFortalezafiledthispetitionforreview
oncertiorari24raisingthefollowingerrors:
I
WHETHER X X X THE HONORABLE COURT OF APPEALS
VIOLATEDTHETWO(2)RAFFLERULEPRESCRIBEDBYAND
LONG ESTABLISHED UNDER THE REVISED INTERNAL
RULESOFTHECOURTOFAPPEALSWHENITIMMEDIATELY
RENDERED THE ASSAILED DECISION BARELY AFTER THE

SUBMISSIONOFTHEPARTIESBRIEFS.INSODOING,THE
_______________
21CARollo,pp.337346.
22Id.,atp.345.
23SeeResolutiondatedJune6,2007,id.,atpp.388389.
24Rollo,pp.1142.
477

VOL.678,AUGUST15,2012

477

Fortaleza vs. Lapitan

HONORABLE COURT OF APPEALS ENGAGED IN
PROCEDURALSHORTCUTSANDACTEDWITHUNDUEHASTE
ANDINDECENTSPEED,THUSRENDERINGITSDECISIONAS
NULL AND VOID AND CHARACTERIZED BY MANIFEST BIAS
ANDPARTIALITYTOTHERESPONDENTS.
II
WHETHER X X X THE HONORABLE COURT OF APPEALS
COMMITTED A SERIOUS REVERSIBLE ERROR IN
UPHOLDING THE TRIAL COURTS ISSUANCE OF A WRIT OF
POSSESSION DESPITE THE FACT THAT THE RESPONDENTS
FAILED TO ESTABLISH THEIR ENTITLEMENT TO THE
ISSUANCE OF SAID WRIT, THE NONCOMPLIANCE BY THE
ORIGINAL MORTGAGORS AND THE RESPONDENTS OF THE
STATUTORY
REQUIREMENTS
OF
EXTRAJUDICIAL
FORECLOSURE OF MORTGAGE UNDER ACT NO. 3135, AND
THE
FATAL
DEFECTS
OF
THE
FORECLOSURE
PROCEEDINGS.
III
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
NOT HOLDING THAT THE PETITIONERS WERE PREVENTED
BYTHERESPONDENTSFROMEXERCISINGTHEIRRIGHTOF
REDEMPTION OVER THE FORECLOSED PROPERTY BY
DEMANDING A REDEMPTION PRICE OF A HIGHLY
INEQUITABLE AND MORE THAN DOUBLE THE AMOUNT OF
THE FORECLOSED PROPERTY, ESPECIALLY THAT THE
FORECLOSED MORTGAGED PROPERTY IS THE FAMILY
HOMEOFPETITIONERSANDTHEIRCHILDREN.25

First,spousesFortalezapointoutthattheCAviolatedits
own2002InternalRulesofProcedurewhenitdecidedthe
casewithoutpassingthetworafflesystem.Theyclaimthat
thejusticeassignedinthecompletionstagealsodecidedthe
case on the merits. This procedural shortcut, according to
spouses Fortaleza, evinces the appellate courts bias and
prejudgmentinfavorofthespousesLapitan.
_______________
25Id.,atpp.236237.
478

478

SUPREMECOURTREPORTSANNOTATED
Fortaleza vs. Lapitan

Second,citingBarican v. Intermediate Appellate Court26

and Cometa v. Intermediate Appellate Court,27 and

reiterating the irregularities that allegedly attended the
foreclosure sale, the spouses Fortaleza insist that the
issuanceofwritofpossessionisnotalwaysministerialand
the trial court should have accorded them opportunity to
presentcontraryevidence.
Last, spouses Fortaleza maintain that the subject
propertyisafamilyhomeexemptfromforcedsale.Hence,in
thespiritofequityandfollowingtherulingsinTolentino v.
Court of Appeals,28 and De los Reyes v. Intermediate
Appellate Court,29 the Court should allow them to exercise
therightofredemptionevenaftertheexpirationoftheone
yearperiod.
Our Ruling
On Matters of Procedure
True, under the 2002 Internal Rules of the Court of
Appeals (IRCA), appealed civil cases undergo tworaffle
system.First,apreliminaryraffleisheldtodeterminethe
Justicetowhomthecasewillbeassignedforcompletionof
records. After completion, a second raffle is conducted to
determinetheJusticetowhomthecasewillbeassignedfor
study and report. Each stage is distinct [and] it may
happen that the Justice to whom the case was initially
raffledforcompletionmaynotbethesameJusticewhowill
writethedecisionthereon.30Thus:
_______________
26245Phil.316;162SCRA358(1988).
27235Phil.569;151SCRA563(1987).
28193Phil.663;106SCRA513(1981).
29257Phil.406;176SCRA394(1989).
30De Liano v. Court of Appeals,421Phil.1033,10501051;370SCRA
349,371(2001).
479

VOL.678,AUGUST15,2012

479

Fortaleza vs. Lapitan

Section2.Raffle of Cases.
(a)Assignment of cases to a Justice, whether for completion of
records or for study and report, shall be by raffle, subject to the
followingrules:
(1)Appealed cases for completion of records shall be raffled
toindividualJustices;(Sec.5(a),Rule3,RIRCA[a])
(1.1)Recordsaredeemedcompleteduponfilingofthe
required briefs or memoranda or the expiration of the
period for the filing thereof and resolution of all
pending incidents. Thereupon, the Division Clerk
of Court shall report the case to the Justice
concerned for the issuance of a resolution
declaring the case submitted for decision and
referring the same to the Raffle Committee for
raffle to a Justice for study and report;(Sec.5(b),
Rule3,RIRCA[a]).31 (Emphasissupplied.)

However, the tworaffle system is already abandoned

underthe2009IRCA.Astherulenowstands,theJusticeto
whomacaseisraffledshallactonitbothatthecompletion
stageandforthedecisiononthemerits,thus:
SEC.2.Raffle of Cases.
(a)CasesshallbeassignedtoaJusticebyraffleforcompletionof
records,studyandreport,subjecttothefollowingrules:
(1)Cases, whether original or appealed, shall be raffled to
individualjustices;
(1.1)Recordsaredeemedcompleteduponfilingofthe
required pleadings, briefs or memoranda or the
expiration of the period for the filing thereof and
resolution of all pending incidents. Upon such
completion, the Division Clerk of Court shall
report the case to the Justice concerned for the
issuance of a resolution
_______________
31 Sec. 2, Rule 111, 2002 INTERNAL RULES OF THE COURT OF APPEALS, as
amended.
480

480

SUPREMECOURTREPORTSANNOTATED
Fortaleza vs. Lapitan
declaring the case submitted for decision.32 (Emphasis
supplied.)

Corollarily, the alleged defect in the processing of this

casebeforetheCAhasbeeneffectivelycured.Westressthat
rulesofproceduremaybemodifiedatanytimeandbecome
effectiveatonce,solongasthechangedoesnotaffectvested
rights.33Moreover,itisequallyaxiomaticthatthereareno
vested rights to rules of procedure.34 Thus, unless spouses
Fortalezacanestablisharightbyvirtueofsomestatuteor
law, the alleged violation is not an actionable wrong.35 At
any rate, the 2002 IRCA does not provide for the effect of
noncompliancewiththetworafflesystemonthevalidityof
the decision. Notably too, it does not prohibit the
assignment by raffle of a case for study and report to a
Justicewhohandledthesameduringitscompletionstage.
Wealsofindthatpersonalbiasandprejudgmentcannot
be inferred from the alleged breach of internal rules. It is
settled that clear and convincing evidence is required to
prove bias and prejudice.36 Bare allegations and mere
suspicions of partiality are not enough in the absence of
evidencetoovercomethepresumptionthatamemberofthe
court will undertake his noble role to dispense justice
according to law and evidence and without fear or favor.37
Moreover,noactsorcon
_______________
32Sec.2,Rule111,2009INTERNALRULESOFTHE COURTOFAPPEALS.
33 Aguillon v. Director of Lands, 17 Phil. 506, 508 (1910); Laurel v.
Misa,76Phil.372,378(1946).
34 Alindao v. Hon. Joson, 332 Phil. 239, 251; 264 SCRA 211, 221
(1996).

35SeeOlsen & Co. v. Herstein and Rafferty,32Phil.520,531(1915).

36 Rockwell Perfecto Gohu v. Spouses Gohu, 397 Phil. 126, 132; 343
SCRA114,119(2000).
37Heirs of Generoso A. Juaban v. Bancale, G.R. No. 156011, July 3,
2008, 557 SCRA 1, 13. See also People v. Governor Kho, 409 Phil. 326,
336;357SCRA290,297(2001),citingGo v. Court of Ap
481

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481

Fortaleza vs. Lapitan

duct of the division or the ponente was shown to indicate
any arbitrariness against the spouses Fortaleza. What is
extantisthattheopinionsformedinthecourseofjudicial
proceedingsareallbasedontheevidencepresented.
On the Issuance of Writ of Possession
Spouses Fortaleza claim that the RTC grievously erred
in ignoring the apparent nullity of the mortgage and the
subsequentforeclosuresale.Forthem,theRTCshouldhave
heardandconsideredthesemattersindecidingthecaseon
its merits. They relied on the cases of Barican38 and
Cometa39intakingexceptiontotheministerialdutyofthe
trialcourttograntawritofpossession.
But the cited authorities are not on all fours with this
case. In Barican, we held that the obligation of a court to
issueawritofpossessionceasestobeministerialifthereisa
thirdpartyholdingthepropertyadverselytothejudgment
debtor.Wheresuchthirdpartyexists,thetrialcourtshould
conduct a hearing to determine the nature of his adverse
possession. And in Cometa, there was a pending action
wherethevalidityofthelevyandsaleofthepropertiesin
questionweredirectlyputinissuewhichthisCourtfound
preemptive of resolution. For if the applicant for a writ of
possessionacquirednointerestinthepropertybyvirtueof
thelevyandsale,then,heisnotentitledtoitspossession.
Moreover,itisundisputedthatthepropertiessubjectofsaid
caseweresoldatanunusuallylowerpricethantheirtrue
value.Thus,equitableconsiderationsmotivatedthisCourt
towithholdtheissuanceofthewritofpossessiontoprevent
injusticeontheotherparty.
_______________
peals,G.R.No.106087,April7,1993,221SCRA397,409410;Abad v.
Judge Belen, 310 Phil. 832, 836; 240 SCRA 733, 735 (1995); Webb v.
People,342Phil.206,216;276SCRA243,254(1997);People v. Court of
Appeals,369Phil.150,158;309SCRA705,709710(1999).
38Supranote26.
39Supranote27.
482

482

SUPREMECOURTREPORTSANNOTATED
Fortaleza vs. Lapitan

Here, there are no third parties holding the subject

property adversely to the judgment debtor. It was spouses

Fortaleza themselves as debtorsmortgagors who are

occupyingthesubjectproperty.Theyarenotevenstrangers
totheforeclosureproceedingsinwhichtheex partewritof
possessionwasappliedfor.Significantly,spousesFortaleza
did not file any direct action for annulment of the
foreclosure sale of the subject property. Also, the peculiar
circumstance of gross inadequacy of the purchase price is
absent.
Accordingly, unless a case falls under recognized
exceptions provided by law40 and jurisprudence,41 we
maintain the ex parte, nonadversarial, summary and
ministerialnatureoftheissuanceofawritofpossessionas
outlinedinSection7ofActNo.3135,asamendedbyActNo.
4118,whichprovides:
SECTION7.InanysalemadeundertheprovisionsofthisAct,
the purchaser may petition the Court of First Instance of the
provinceorplacewherethepropertyoranypartthereofissituated,
to give him possession thereof during the redemption period,
furnishingbondinanamountequivalenttotheuseoftheproperty
foraperiodoftwelvemonths,toindemnifythedebtorincaseitbe
shown that the sale was made without violating the mortgage or
without complying with the requirements of this Act. Such
petition shall be made under oath and filed in form of an ex
parte motionxxxandthecourtshall,uponapprovalofthebond,
order that a writ of possession issue,addressedtothesheriffof
the province in which the property is situated, who shall execute
saidorderimmediately.(Emphasissupplied.)
_______________
40 RULES OF COURT, Rule 39, Section 35, which is made applicable to
theextrajudicialforeclosureofrealestatemortgagesbySection6ofAct
3135.
41 See Metropolitan Bank and Trust Co. v. Lamb Construction
Consortium Corporation, G.R. No. 170906, November 27, 2009, 606
SCRA159;Cometa v. Intermediate Appellate Court,supranote27;Sulit
v. Court of Appeals,335Phil.914;268SCRA441(1997).
483

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Fortaleza vs. Lapitan

Under the provision cited above, the purchaser in a
foreclosure sale may apply for a writ of possession during
the redemption period. Notably, in this case, the oneyear
period for the spouses Fortaleza to redeem the mortgaged
propertyhadalreadylapsed.Furthermore,ownershipofthe
subject property had already been consolidated and a new
certificate of title had been issued under the name of the
spousesLapitan.Hence,asthenewregisteredownersofthe
subject property, they are even more entitled to its
possession and have the unmistakable right to file an ex
partemotionfortheissuanceofawritofpossession.Asaptly
explained in Edralin v. Philippine Veterans Bank,42 the
dutyofthetrialcourttograntawritofpossessioninsuch
instances is ministerial, and the court may not exercise
discretionorjudgment,thus:

Consequently,thepurchaser,whohasarighttopossessionafter
theexpirationoftheredemptionperiod,becomestheabsoluteowner
of the property when no redemption is made. x x x The purchaser
can demand possession at any time following the consolidation of
ownershipinhisnameandtheissuancetohimofanewTCT.After
consolidation of title in the purchasers name for failure of the
mortgagor to redeem the property, the purchasers right to
possession ripens into the absolute right of a confirmed owner. At
that point, the issuance of a writ of possession, upon proper
application and proof of title becomes merely a ministerial
function. Effectively, the court cannot exercise its
discretion.(Emphasisintheoriginal.)

In this case, spouses Lapitan sufficiently established

theirrighttothewritofpossession.Morespecifically,they
presented the following documentary exhibits: (1) the
CertificateofSaleanditsannotationatthebackofspouses
Fortalezas TCT No. T412512; (2) the Affidavit of
Consolidation proving that spouses Fortaleza failed to
redeemthepropertywithintheoneyearredemptionperiod;
(3)TCTNo.T535945issued
_______________
42G.R.No.168523,March9,2011,645SCRA75,8586.
484

484

SUPREMECOURTREPORTSANNOTATED
Fortaleza vs. Lapitan

in their names; and, (4) the formal demand on spouses

Fortalezatovacatethesubjectproperty.
Lastly, we agree with the CA that any question
regardingtheregularityandvalidityofthemortgageorits
foreclosure cannot be raised as a justification for opposing
thepetitionfortheissuanceofthewritofpossession.43The
said issues may be raised and determined only after the
issuanceofthewritofpossession.44Indeed,[t]hejudgewith
whomanapplicationforwritofpossessionisfiledneednot
look into the validity of the mortgage or the manner of its
foreclosure.45 The writ issues as a matter of course. The
rationale for the rule is to allow the purchaser to have
possession of the foreclosed property without delay, such
possession being founded on the right of ownership.46 To
underscorethismandate,Section847
_______________
43 See Chailease Finance Corporation v. Spouses Ma, 456 Phil. 498,
505506;409SCRA250,255(2003).
44Samson v. Rivera,G.R.No.154355,May20,2004,428SCRA759,
768.
45Fernandez v. Espinoza,G.R.No.156421,April14,2008,551SCRA
136,149.
46 Bank of the Philippine Islands v. Tarampi, G.R. No. 174988,
December10,2008,573SCRA537,543544,citingSpouses Ong v. Court
of Appeals,388Phil.857,865;333SCRA189,197(2000).
47 Section8.Setting aside of sale and writ of possession.The
debtor may, in the proceedings in which possession was

requested,butnotlaterthanthirtydaysafterthepurchaserwasgiven
possession, petition that the sale be set aside and the writ of
possession cancelled, specifying the damages suffered by him,
because the mortgage was not violated or the sale was not made in
accordance with the provisions hereof, and the court shall take
cognizance of this petition in accordance with the summary procedure
provided for in section one hundred and twelve of Act Numbered Four
hundred and ninetysix; and if it finds the complaint of the debtor
justified,itshalldisposeinhisfavorofallorpartofthebondfurnished
bythepersonwhoobtainedpossession.Eitherofthepartiesmayappeal
from the order of the judge in accordance with section fourteen of Act
NumberedFourhundredandninetysix;but
485

VOL.678,AUGUST15,2012

485

Fortaleza vs. Lapitan

ofActNo.3135givesthedebtormortgagortherighttofilea
petitionforthesettingasideoftheforeclosuresaleandfor
the cancellation of a writ of possession in the same
proceedingswherethewritwasissuedwithin30daysafter
thepurchasermortgageewasgivenpossession.Thecourts
decision thereon may be appealed by either party, but the
order of possession shall continue in effect during the
pendencyoftheappeal.
Clearlythen,untiltheforeclosuresaleofthepropertyin
question is annulled by a court of competent jurisdiction,
theissuanceofawritofpossessionremainstheministerial
duty of the trial court. The same is true with its
implementation;otherwise,thewritwillbeauselesspaper
judgmentaresultinimicaltothemandateofActNo.3135
tovestpossessioninthepurchaserimmediately.48
On exemption of the subject property
and the exercise of right of redemption
Spouses Fortalezas argument that the subject property
is exempt from forced sale because it is a family home
deservesscantconsideration.Asarule,thefamilyhomeis
exempt from execution, forced sale or attachment.49
However,Article155(3)oftheFamilyCodeexplicitlyallows
the forced sale of a family home for debts secured by
mortgages on the premises before or after such constitution.
In this case, there is no doubt that spouses Fortaleza
voluntarily executed on January 28, 1998 a deed of Real
EstateMortgageoverthesubjectpropertywhichwaseven
notarizedbytheiroriginalcounselofrecord.Andassuming
that the property is exempt from forced sale, spouses
FortalezadidnotsetupandprovetotheSheriff
_______________
the order of possession shall continue in effect during the pendency
oftheappeal.(Emphasessupplied.)
48Bank of the Philippine Islands v. Tarampi, supranote46atp.544,
citingChailease Finance Corporation v. Spouses Ma, supranote43.
49SeeArticle155oftheFAMILYCODE .
486

486

SUPREMECOURTREPORTSANNOTATED
Fortaleza vs. Lapitan

such exemption from forced sale before it was sold at the

public auction. As elucidated in Honrado v. Court of
Appeals:50
While it is true that the family home is constituted on a house
and lot from the time it is occupied as a family residence and is
exempt from execution or forced sale under Article 153 of the
FamilyCode,suchclaimforexemptionshouldbesetupandproved
to the Sheriff before the sale of the property at public auction.
Failure to do so would estop the party from later claiming
the exemption.AsthisCourtruledinGomez v. Gealone:
Although the Rules of Court does not prescribe the period
withinwhichtoclaimtheexemption,theruleis,nevertheless,
wellsettledthattherightofexemptionisapersonalprivilege
granted to the judgment debtor and as such, it must be
claimed not by the sheriff, but by the debtor himself at the
time of the levy or within a reasonable period thereafter[.]51
(Emphasissupplied.)

Certainly, reasonable time for purposes of the law on

exemptiondoesnotmeanatimeaftertheexpirationofthe
oneyear period for a judgment debtor to redeem the
property.52
EquallywithoutmeritisspousesFortalezasrelianceon
the cases of Tolentino53 and De Los Reyes54 in praying for
the exercise of the right of redemption even after the
expirationoftheoneyearperiod.InTolentino,weheldthat
an action to redeem filed within the period of redemption,
with a simultaneous deposit of the redemption money
tendered to the sheriff, is equivalent to an offer to redeem
andhastheeffectofpreservingtherighttoredemptionfor
futureenforcement
_______________
50512Phil.657;476SCRA280(2005).
51Id.,atp.666,p.288.
52Spouses De Mesa v. Spouses Acero, G.R. No. 185064, January 16,
2012,663SCRA40.
53Supranote28.
54Supranote29.
487

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Fortaleza vs. Lapitan

evenbeyondtheoneyearperiod.55AndinDe Los Reyes,we
allowedthemortgagortoredeemthedisputedpropertyafter
findingthatthetenderoftheredemptionpricetothesheriff
was made within the oneyear period and for a sufficient
amount.
The circumstances in the present case are far different.
The spouses Fortaleza neither filed an action nor made a
formaloffertoredeemthesubjectpropertyaccompaniedby
an actual and simultaneous tender of payment. It is also

undisputed that they allowed the oneyear period to lapse

from the registration of the certificate of sale without
redeeming the mortgage. For all intents and purposes,
spousesFortalezahavewaivedorabandonedtheirrightof
redemption. Although the rule on redemption is liberally
interpretedinfavoroftheoriginalowneroftheproperty,we
cannotapplytheprivilegeofliberalitytoaccommodatethe
spouses Fortaleza due to their negligence or omission to
exercise the right of redemption within the prescribed
periodwithoutjustifiablecause.
WHEREFORE, premises considered, the petition is
DENIED. The Decision dated January 10, 2007 and
Resolution dated June 6, 2007 of the Court of Appeals in
CAG.R.CVNo.86287areAFFIRMED.
SOORDERED.
Carpio,** LeonardoDe
Villarama, Jr., JJ.,concur.

Castro,***

Bersamin

and

Petition denied, judgment and resolution affirmed.

_______________
55SeealsoBelisario v. Intermediate Appellate Court,247APhil.184;
165SCRA101(1988).
**PerSpecialOrderNo.1284datedAugust6,2012.
*** Acting Chairperson, per Special Order No. 1226 dated May 30,
2012.
488

488

SUPREMECOURTREPORTSANNOTATED
Fortaleza vs. Lapitan

Notes.The right to possession of a purchaser at an

extrajudicial foreclosure sale is not affected by a pending
casequestioningthevalidityoftheforeclosureproceeding.
The latter is not a bar to the former. Even pending such
latter proceeding, the purchaser at a foreclosure sale is
entitledtothepossessionoftheforeclosedproperty.(Cu Lai
Chu vs. Laqui, 612SCRA 227[2010])
Thetenderoftheredemptionmoneymaybemadetothe
purchaserofthelandortothesheriff;Ifmadetothesheriff,
itishisdutytoacceptthetenderandexecutethecertificate
ofredemption.(Yap vs. Dy, Sr., 654SCRA 593[2011])
o0o

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