SECOND DIVISION
[G.R. No. 207085. September 9, 2013.]
RAQUEL ROWENA RODRIGUEZ, petitioner, vs. PHILIPPINE NATIONAL BANK, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated 09 September 2013 which reads as follows:
G.R. No. 207085 (Raquel Rowena Rodriguez, petitioner, v. Philippine National Bank, respondent.
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the Decision dated December 14, 2012 1 and the Resolution dated April 24, 2013 2 of the Court of Appeals (CA) in C.A.-G.R. SP. No. 120375. The Court of Appeals affirmed the ruling of the Regional Trial Court-Branch 10 (RTC), Balayan, Batangas in Petition Case No. 30, and effectively disallowed the intervention of petitioner Raquel Rowena Rodriguez.
The records show that in 1992, Spouses Apollo (Apollo) and Yolanda Abiad, for themselves and as attorneys-in-fact of the registered owner, Josephine Rhodora Abiad (Josephine), executed a real estate mortgage in favor of respondent Philippine National Bank (PNB) over a parcel of land situated in Tuy, Batangas. The Spouses Abiad failed to pay their obligation, thus, the PNB moved for the extrajudicial foreclosure of the mortgage. After public auction, the PNB emerged as the winning bidder, and a Certificate of Sale was issued and registered in its favor. After the lapse of the redemption period without the mortgagors exercising the right of redemption, the PNB moved for reconsideration of title, as a result of which, Transfer Certificate of Title No. T-2008 was issued in its name. Following such, the PNB filed an ex parte petition for the issuance of a writ of possession. IHTaCE
It was during this time that petitioner moved to intervene, claiming that she is the sister of Josephine and Apollo, that she is living in the subject lot as co-owner, and that said lot was mortgaged without her consent. The RTC denied intervention, and this denial was affirmed by the CA. Hence, the present petition for review on certiorari.
Before this Court, petitioner raises the following issues:
17.1 Has the special land registration court jurisdiction to issue a Writ of Possession if the foreclosed property is in the possession of an adverse third party claimant, and not with the mortgagor?
17.2 Has a third party in adverse physical possession of the property the right to intervene in a special land registration case for the issuance of a Writ of Possession?
17.3 Has the special land registration court the jurisdiction to resolve the adverse claim of the third party in actual possession of the property?
17.4 May the special land registration court acquire jurisdiction in a special land registration case without establishing the required jurisdictional facts under the Land Registration Act?3
We deny the petition.
At the outset, we note that the issues herein raised by petitioner are the same issues she had submitted before the CA, which issues have already been squarely ruled upon by the latter.
At any rate, we find no reversible error in the assailed decision and resolution as to warrant the exercise by this Court of its discretionary appellate jurisdiction.
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. An exception to this general rule, however, is provided in Sec. 33, Rule 39 of the Revised Rules of Court, 4 which provides that possession of the extrajudicially foreclosed property shall be withheld from the purchaser if a third party is actually holding the same adversely to the mortgagor.
In BPI Family Savings Bank, Inc. v. Golden Power Diesel Sales Center, Inc., 5 we held that in an extrajudicial foreclosure of real property, when the foreclosed property is in the possession of a third party holding the same adversely to the defaulting mortgagor, 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. For the exception to apply, however, the property need not only be possessed by a third party but, more importantly, he must possess it by adverse title or right.
In the case at bar, both the RTC and CA found that there is absolutely no showing that petitioner is a co-owner of the subject property. As confirmed by the CA, petitioner did not present any title or document to prove co-ownership or even the circumstances of her alleged actual possession. Thus, the exception mentioned above does not apply to petitioner. AaIDCS
Moreover, the instant petition lacks proof of service of the petition on the CA and on counsel for respondent, in violation of Sec. 5 (d) of Rule 56 in relation of Sec. 13 of Rule 13 of the Rules of Court. Said petition also lacks a clearly legible duplicate original or certified true copy of the assailed Resolution dated April 24, 2013, in violation of Sec. 4 (d) and Sec. 5 of Rule 45 in relation to Sec. 5 (d) of Rule 56, also of the Rules of Court.
WHEREFORE, the present petition for review on certiorari is DENIED.
SO ORDERED.
Very truly yours,
(SGD.) MA. LOURDES C. PERFECTODivision Clerk of Court
By:
TERESITA AQUINO TUAZONDeputy Division Clerk of Court
Footnotes
1.Penned by Associate Justice Amelita G. Tolentino with Associate Justices Ramon R. Garcia and Danton Q. Bueser, concurring. Rollo, pp. 40-51.
2.Id. at 6-8.
3.Id. at 20-21.
4.Sec. 33. Deed and possession to be given at expiration of redemption period; by whom executed or given. —
xxx xxx xxx
Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy. The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party in actually holding the property adversely to the judgment obligor.
5.G.R. No. 176019, 12 January 2011, 639 SCRA 405.