Clarification on the Disposition of Petitions for Issuance of Writ of Possession in Extrajudicial Foreclosure of Mortgages Relative to OCA Circular No. 91-2021 Dated 7 July 2021
OCA Circular No. 46-2022 provides guidance to judges and clerks of court regarding the handling of petitions for the issuance of writs of possession following extrajudicial foreclosure of real estate mortgages. It instructs that such petitions should be docketed as cadastral cases and raffled among the appropriate branches of the court. The circular emphasizes that once the title has been consolidated in the purchaser's name due to the mortgagor's failure to redeem the property, the issuance of a writ of possession is a matter of right and a ministerial act. Furthermore, it clarifies the applicable legal fees for these ex parte motions, noting that only specific fees are required as per existing regulations.
March 3, 2022
OCA CIRCULAR NO. 46-2022
| TO | : | All Concerned Judges and Clerks of Court of the First and Second Level Courts |
| SUBJECT | : | Clarification on the Disposition of Petitions for Issuance of Writ of Possession in Extrajudicial Foreclosure of Mortgages Relative to OCA Circular No. 91-2021 Dated 7 July 2021 |
Due to the several inquiries on the disposition of Petitions for the Issuance of Writ of Possession in Extrajudicial Foreclosure of Real Estate Mortgages filed in the Regional Trial Courts (RTCs) relative to OCA Circular No. 91-2021 dated 7 July 2021, all Clerks of Court or Acting Clerks of Court of the RTCs are DIRECTED to docket the said petition as a cadastral case in line with Section 7 of Act 3135, and thereafter RAFFLE the same, in case of multi-sala court, among the branches of the station of the court which conducted the extrajudicial foreclosure sale.
Please be reminded that after the consolidation of title in the buyer's name in view of the failure of the mortgagor to redeem the mortgaged property, the writ of possession becomes a matter of right and its issuance to a purchaser in an extrajudicial foreclosure is merely a ministerial function. 1 Along this line, Spouses Arquiza v. Court of Appeals2 is instructive, thus:
Indeed, it is well-settled that an ordinary action to acquire possession in favor of the purchaser at an extrajudicial foreclosure of real property is not necessary. There is no law in this jurisdiction whereby the purchaser at a sheriff's sale of real property is obliged to bring a separate and independent suit for possession after the one-year period for redemption has expired and after he has obtained the sheriff's final certificate of sale. The basis of this right to possession is the purchaser's ownership of the property. The mere filing of an ex parte motion for the issuance of the writ of possession would suffice, and no bond is required. [Emphasis supplied.]
Moreover, considering that ex parte petitions for the issuance of a writ of possession are considered motions 3 for purposes of the collection of legal fees, and since the motion fee for other motions is still suspended pursuant to the Resolution of the Court En Banc dated 21 September 2004 in A.M. No. 04-2-04-SC, you are only required to collect the fee prescribed in Section 21 (e) of Rule 141, Revised Rules of Court, on reception of evidence in ex parte proceedings (with legal research fee), in addition to the prescribed fees under Section 111 (A) of P.D. No. 1529.
For strict compliance.
(SGD.) RAUL BAUTISTA VILLANUEVACourt Administrator
Footnotes
1. G.R. No. 157867, 15 December 2009.
2. 498 Phil. 793 (2005).
3. G.R. No. 160479, June 8, 2005.