SECOND DIVISION
[G.R. No. 203216. March 18, 2013.]
RMF REALTY DEVELOPMENT CORPORATION, petitioner, vs. BANK OF THE PHILIPPINE ISLANDS, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated 18 March 2013which reads as follows:
G.R. No. 203216 (RMF Realty Development Corporation v. Bank of the Philippine Islands). — The petitioner, RMF Realty Development Corporation (RMF), seeks reconsideration of the Court's Resolution dated 21 November 2012 1 which denied its petition for review on certiorari 2 assailing the decision 3 dated 24 February 2012 and the resolution 4 dated 13 August 2012 of the Court of Appeals (CA) in CA-G.R. CV No. 94655. The Court found no reversible error in the CA rulings which would warrant the exercise of the Court's discretionary appellate jurisdiction. In its motion for reconsideration, RMF argues otherwise.
The core issue in this case is the propriety of the issuance of a writ of possession in favor of respondent Bank of the Philippine Islands (BPI) despite the claim of RMF over the foreclosed property and the pendency of RMF's action to annul the foreclosure sale.
RMF insists that the issuance of a writ of possession (after the expiration of the period to redeem) ceases to be ministerial on the part of the trial court when a third party is holding the property adversely to the mortgagor. RMF contends that it acquired, through a deed of assignment, the property from the mortgagor sometime in 2000 and it has been in possession of the property ever since. RMF alleges that these facts were known to BPI because the latter tolerated the former's possession from 2000 to 2008 (when BPI applied for a writ of possession) and the latter entertained the former's offer to settle the mortgage debt. Thus, RMF claims that the CA erred in applying the general rule involving the issuance of the writ of possession and insists that the writ of possession is no longer available to the mortgagee when a third party is holding the property adversely to the mortgagor. CDAHaE
THE COURT'S RULING
The general rule is that "a purchaser in a public auction sale of a foreclosed property is entitled to a writ of possession and, upon an ex parte petition of the purchaser, it is ministerial upon the trial court to issue the writ of possession in favor of the purchaser. There is, however, an exception." 5 Under Section 33, Rule 39 of the Rules of Court, "when the foreclosed property is in the possession of a third party holding the same adversely to the judgment obligor, the issuance by the trial court of a writ of possession in favor of the purchaser of said real property ceases to be ministerial and may no longer be done ex parte. The procedure is for the trial court to order a hearing to determine the nature of the adverse possession. For the exception to apply, however, the property need not only be possessed by a third party, but also held by the third party adversely to the judgment obligor." 6
RMF, however, is not a third party holding the property adversely to the judgment obligor. In China Banking Corporation v. Lozada, 7 we discussed the meaning of a third party who is actually holding the property adversely to the judgment obligor. We stated:
The exception provided under Section 33 of Rule 39 of the Revised Rules of Court contemplates a situation in which a third party holds the property by adverse title or right, such as that of a co-owner, tenant or usufructuary. The co-owner, agricultural tenant, and usufructuary possess the property in their own right, and they are not merely the successor or transferee of the right of possession of another co-owner or the owner of the property.
As assignee of the judgment obligor, RMF merely stepped into the judgment obligor's shoes, hence, RMF merely succeeds to whatever rights the judgment obligor may have over the property. RMF, therefore, does not possess the property adversely to the judgment obligor and it cannot contest the issuance of the writ of possession in favor of BPI.
WHEREFORE, RMF Realty Development Corporation's motion for reconsideration of the Court's Resolution dated 21 November 2012 is DENIED.
SO ORDERED.
Very truly yours,
(SGD.) MA. LOURDES C. PERFECTODivision Clerk of Court
Footnotes
1.Rollo, pp. 65-66.
2.Filed under Rule 45 of the Rules of Court; id. at 12-24.
3.Id. at 29-42.
4.Id. at 43-44.
5.BPI Family Savings Bank, Inc. v. Golden Power Diesel Sales Center, Inc., G.R. No. 176019, January 12, 2011, 639 SCRA 405, 415; italics supplied.
6.Id. at 415-416. Italics supplied; emphases and underscores ours; citations omitted.
7.G.R. No. 164919, July 4, 2008, 557 SCRA 177, 202-204, cited in BPI Family Savings Bank, Inc. v. Golden Power Diesel Sales Center, Inc., supra note 5, at 417-418. Citations omitted; emphases ours.