The purchaser at the public auction sale of an extrajudicially foreclosed

real property may seek possession in accordance with Section 7 of Act no.
3135, as amended by Act no. 4118.
Section 7. In any sale made under the provisions of this Act, the
purchaser may petition the Court of First Instance of the
province or place where the property or any part thereof is
situated, to give him possession thereof during the
redemption period, furnishing bond in an amount equivalent to
the use of the property for a period of twelve months, to
indemnify the debtor in case it be 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 motion in the
registration or cadastral proceedings if the property is
registered, or in special proceedings in the case of property
registered under the Mortgage Law or under section one hundred
and ninety-four of the Administrative Code, or of any other real
property encumbered with a mortgage duly registered in the
office of any register of deeds
 As a General rule:
Upon expiration of one year period of
redemption counted from the registration of the
sale, the right of the purchaser to possession
of the foreclosed property becomes absolute
The SC held, buyer in a foreclosure sale
becomes the absolute owner of the property
purchased if it is not redeemed during the
period of one year after the registration of the
sale. As such, he is entitled to the possession of
the said property and can demand it at any time
following the consolidation of ownership in his
name and the issuance to him of a new transfer
certificate of title.(China Banking Corporation
vs. Lozada, July 4, 2008)
 Exception:
UnderSec. 35, Rule 39 of the Revised Rules
of Court, which was made applicable to the
extrajudicial foreclosure of real estate
mortgages by Sec. 6 Act No. 3135, the
possession of the mortgaged property may
be awarded to a purchaser in extrajudicial
foreclosures "unless a third party is
actually holding the property adversely to
the judgment debtor."
(Clapano v. Gapultos,)
 Upon the expiration of the redemption
period, the right of the purchaser to the
possession of the foreclosed property
becomes absolute. Thus, the mere filing of
an ex parte motion for the issuance of a writ
of possession would suffice, and there is no
bond required since possession is a necessary
consequence of the right of the confirmed
owner. It is a settled principle that a pending
action for annulment of mortgage or
foreclosure sale does not stay the issuance of
the writ of possession.(PNB vs. Gotesco, June
5, 2009)
 It is settled that the buyer in a foreclosure sale
becomes the absolute owner of the property
purchased if it is not redeemed during the period
of one year after the registration of sale. As
such, he is entitled to the possession of the
property and can demand it any time following
the consolidation of ownership in his name and
the issuance of a new transfer certificate of
title. In such a case, the bond required in
Section 7 of Act No. 3135 is no longer
necessary. Possession of the land then becomes
an absolute right of the purchaser as confirmed
owner. Upon proper application and proof of
title, the issuance of the writ of possession
becomes a ministerial duty of the court.(BPI vs
Tarampi)
 A petition for writ of possession is ex parte and
summary in nature.

non-litigious proceeding

Enforcement of ones right or possession

 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 speaking 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 filed in court, by which
one party "sues another for the enforcement of a wrong or
protection of a right, or the prevention or 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.
(Oliveros vs. hon.presiding judge of RTC)
A mortgagee becomes absolute owner after
expiration of period of redemption without
mortgagor exercising right to redeem;
possession may be demanded after
consolidation of ownership; issuance of writ
of possession.
 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 herein respondent upon the latter's filing of a
petition. (LAM VS METRO BANK)
 The purchaser at the public auction sale of
an extrajudicially foreclose real property
may seek possession thereof in accordance
with section 7 of Act 3135 as amended.
to give him possession thereof during the
redemption period, furnishing bond in an
amount equivalent to the use of the property
for a period of twelve months, to indemnify
the debtor in case it be shown that the sale
was made without violating the mortgage or
without complying with the requirements of
this Act.
 the court may issue as a matter of course a
writ of possession in favor of the purchaser
even during the redemption period,
provided that a proper motion has been
filed, a bond is approved, and no third
person is involved to his right of possession,
the purchaser must invoke the aid of the
courts and ask for a writ of possession.
(Joven vs CA)
 The buyer can in fact demand possession of
the land even during the redemption period
except that he has to post a bond in
accordance with Section 7 of Act No. 3133
as amended. No such bond is required after
the redemption period if the property is not
redeemed. Possession of the land then
becomes an absolute right of the purchaser
as confirmed owner. Upon proper
application and proof of title, the issuance of
the writ of possession becomes a ministerial
duty of the court. (David Enterprises vs.
Insular Bank of Asia and America)
 It is settled that the buyer in a foreclosure sale
becomes the absolute owner of the property
purchased if it is not redeemed during the period
of one year after the registration of sale. As
such, he is entitled to the possession of the
property and can demand it any time following
the consolidation of ownership in his name and
the issuance of a new transfer certificate of
title. In such a case, the bond required in
Section 7 of Act No. 3135 is no longer necessary.
Possession of the land then becomes an absolute
right of the purchaser as confirmed owner. Upon
proper application and proof of title, the
issuance of the writ of possession becomes a
ministerial duty of the court. (SUENO VS LBP)
 The pendency of a separate civil suit
questioning the validity of the mortgage or
its foreclosure cannot be a legal ground for
refusing the issuance of a writ of possession
because the same is a ministerial act of the
trial court after title has been consolidated
in the name of mortgagee.
pendency of a separate civil suit questioning
the validity of the mortgage cannot bar the
issuance of the writ of possession, because the
same is a ministerial act of the trial court after
title on the property has been consolidated in
the mortgagee. The ruling was reiterated
in Navarra v. Court of Appeals, in which we
held that as a rule any question regarding the
validity of the mortgage or its foreclosure
cannot be a legal ground for refusing the
issuance of a writ of possession. (VACA vs. CA
July 1994)
1. The possession of property is given to a
purchaser in extrajudicial foreclosures
unless a third party is actually holding the
property adversely to the judgment
debtor

2. Where the price is unjustifiably higher

that the real amount of obligation.
 Third party involved

Even under Section 35, Rule 39 of the

Rules of Court, made applicable in extrajudicial
foreclosures of real estate mortgages by Section
6 of Act No. 3135, the possession of property is
given to a purchaser in extrajudicial foreclosures
unless a third party is actually holding the
property adversely to the judgment debtor." In
this case, the subject land was being possessed
and cultivated by the Abellons as third parties,
whose status as tenants was recognized in CAR
Case No. 44. Abellons were being conceded to be
tenants of the subject property as of July 6, 1977,
and were being allowed to re-enter the
landholding (Clapuno vs Gapultos)
 Price is unjustifiably higher

The general rule that mere inadequacy of price

is not sufficient to set aside a foreclosure sale is
based on the theory that the lesser the price the
easier it will be for the owner to effect the
redemption. The same thing cannot be said
where the amount of the bid is in excess of the
total mortgage debt. The reason is that in case
the mortgagor decides to exercise his right of
redemption, Section 30 of Rule 39 provides that
the redemption price should be equivalent to
the amount of the purchase price, plus one per
cent monthly interest up to the time of the
redemption, together with the amount of any
assessments or taxes which the purchaser may
have paid thereon after purchase. (Sulit vs CA
Feb. 1997)
Leong vs. Tanguangco March 2008
Facts: Petitioners alleged that before
the Cavite RTC could issue a writ of possession, the
issues as to the validity of the real estate mortgage
contracts, loan agreements, promissory notes,
extrajudicial foreclosure and auction sale of the
subject properties must first be resolved by the
Las Pias RTC. They averred that their rights in Civil Case
No. LP-99-0072 would be greatly and gravely
prejudiced and that their claims in said case would be
rendered nugatory if the court would allow Hermosa
Bank to prematurely take possession of the properties
 Held: As the CA correctly found, the RTC
of Bacoor, Cavite had already granted the
writ of possession sought by Hermosa. Hence,
the petition to consolidate the case before the
RTC of Bacoor, Cavite with the case pending
before the RTC of Las Pias, had become moot
and academic.
 Section 5, Rule 16 of the Rules of Court
which provides:
"Pleading grounds as affirmative defenses.
Any of the grounds for dismissal provided for
in this rule, except improper venue, may be
pleaded as an affirmative defense, and a
preliminary hearing may be had thereon as if
a motion to dismiss had been filed."
A party cannot invoke the jurisdiction of the
court to secure affirmative relief against his
opponent and, after obtaining or failing to
obtain such relief, repudiate or question that
same jurisdiction. Put differently, it is not
proper for a party who has affirmed and
invoked the jurisdiction of a court in a
particular matter to secure an affirmative
relief, to afterwards deny that same
jurisdiction to escape penalty. That order was,
undoubtedly, and adjudication on the merits of
Respondents claim and cause of action. (De
Ramos vs. CA)
 An error of judgment is one which the court
may commit in the exercise of its jurisdiction, and
which error is reviewable only by an appeal. Error of
jurisdiction is one where the act complained of was
issued by the court without or in excess of
jurisdiction and which error is correctible only by the
extraordinary writ of certiorari. As long as the court
acts within its jurisdiction, any alleged errors
committed in the exercise of its discretion will
amount to nothing more than mere errors of
judgment, correctible by an appeal if the aggrieved
party raised factual and legal issues; or a petition for
review under Rule 45 of the Rules of Court if only
questions of law are involved (San Fernando Rural
Bank vs Pampanga Omnibus Development Corp)
 An equitable mortgage is one which although
it lacks some formality or form or words or
other requisites demanded by a statue,
nevertheless reveals the intention of the
parties demanded real property as security
for a debt and contains nothing impossible or
contrary to law. Not an equitable mortgage
in this case
Inadequacy of the price does not by itself
support the conclusion that the property was
not at all sold to the petitioner or that the
contract was a loan. Inadequacy is not
sufficient to set aside a sale unless it is purely
shocking to the conscience An equitable
mortgage is "one which although it lacks some
formality, form of words or other requisites
prescribed by a statute, show(s) the intention
of the parties to charge a real property as
security for a debt and contains nothing
impossible or contrary to law." (Cachola sr. vs
CA)
 (1) the parties enter into what appears to be
a contract of sale,
(2) but their intention is to secure an existing
debt by way of mortgage
 The price agreed upon should not generally be
considered as the just value of the thing sold,
absent other corroborative evidence. This is
because, on the part of the vendor, the right to
repurchase the land makes it immaterial to him
whether or not the price of the sale is the just
value thereof. As for the vendee, the price does
not induce him to enter into the contract as he
does not acquire the thing irrevocably, but
subject to repurchase at the stated
period. Rather, the vendee pins his hope on the
expectancy that he will acquire the thing
absolutely at a favorable price should the vendor
fail to redeem the thing sold. There is no
requirement in sales that the price be equal to
the exact value of the thing subject matter of
the sale. (DORADO VDA vs DELLOTA)
 Art. 1602. The contract shall be presumed to be an equitable mortgage,
in any of the following cases:
1. When the price of a sale with right to repurchase is unusually
inadequate;
2. When the vendor remains in possession as lessee or otherwise;
3. When upon or after the expiration of the right to repurchase
another instrument extending the period of redemption or granting
a new period is executed;
4. When the purchaser retains for himself a part of the purchase
price;
5. When the vendor binds himself to pay the taxes on the thing sold;
6. In any other case where it may be fairly inferred that the real
intention of the parties is that the transaction shall secure the
payment of a debt or the performance of any other obligation.
In any of the foregoing cases, any money, fruits, or other benefit to be
received by the vendee as rent or otherwise shall be considered as
interest which shall be subject to the usury laws
 Art. 1604. The provisions of Article 1602
shall also apply to a contract purporting to
be an absolute sale.
When a contract purporting to be sale with a
right to repurchase is held as equitable
mortgage, the same shall be given effect as if
it has complied with the formal requirements
of mortgage. The supposed vendee has the
right to recover the amount loaned.