Sunday, April 17, 2016

SAMPLE WRIT OF POSSESSION


REPUBLIC OF THE PHILIPPINES
NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
Branch ____
Makati City


IN RE:  PETITION FOR ISSUANCE OF WRIT OF POSSESSION OVER REAL PROPERTY COVERED BY TRANSFER CERTIFICATE     OF     TITLE    NO. 100-201367890   OF THE REGISTRY OF DEEDS FOR MAKATI CITY



LRC Case No. _____________

AAA,
                                   Petitioner.


x------------------------------------x

                                               
EX-PARTE PETITION
FOR ISSUANCE OF WRIT OF POSSESSION


COMES NOW the Petitioner, by and through the undersigned counsel, and unto this Honorable Court, respectfully alleges that;

1.      The Petitioner, AAA, of legal age, Filipino and a resident of Block 11 Lot 12, Chocolate Village, Makati City, where it may be served with court processes;

2.      SPS XXX and YYY, both Filipino, of legal age and with residence at No. 143 Lovingly Avenue, Barangay Kalayaan, Makati City, obtained a loan from the Petitioner  in the amount of THREE MILLION PESOS (Php 3,000,000.00);

          3.      To secure the prompt payment of the said loan, SPS XXX and YYY executed a Real Estate Mortgage in favor of the Petitioner over a parcel of land together with all the improvements thereon, identified as Lot 39 Block 5 of the subd. Plan Pcs-20-000123, situated in Barangay Kalayaan, Makati City, covered then by Transfer Certificate of Title No. T-123456 issued by the Registry of Deeds for Makati City, a copy of the aforesaid Real Estate Mortgage dated 18 January 2008 is hereto attached and made an  integral part hereon as Annex “A

4.      The said borrowers/mortgagors failed to pay the aforesaid loan pursuant to the terms of the loan agreement), and notwithstanding demands for payment, they failed and refused to pay the Petitioner the aforesaid loan, which became past due;

5.      As a consequence of the failure and refusal of the said borrowers/mortgagors  to pay their past due loan, the Petitioner instituted an extra-judicial foreclosure proceeding against the Real Estate Mortgage and caused the sale at public auction pursuant to Act No. 3135, as amended, of the aforesaid mortgaged property, which was sold to the herein Petitioner as the highest bidder, and subsequently the corresponding Certificate of Sale was issued  in  its favor, a copy  of said  Certificate  of Sale dated 19 October 2011, is here on attached as Annex ”B”;

          6.      The said Certificate of Sale (Annex “B”) was duly registered with the Registry of Deeds for Makati City on 13 November 2011;

          7.      The said borrowers/mortgagors failed to redeem the property within the redemption period or within one (1) year from the date of the registration of the Certificate of Sale; hence, the Petitioner, consolidated its ownership of the subject property by executing and filing with the Registry of Deeds for Makati City an Affidavit of Consolidation of Ownership dated 18 December 2012, a copy of which is hereto attached as Annex “C”;

          8.      Consequently, Transfer Certificate of Title No. T-123456 covering the subject property in the name of the borrowers/mortgagors was cancelled and in lieu thereof, Transfer Certificate of Title No. 100-201367890 in the name of the herein Petitioner was issued by the Registry of Deeds for Makati City on 14 February 2013, a copy of the said TCT No. 100-201367890 is hereto attached as Annex “D”;

9.      That in a Letter dated 18 June 2013, demand was made upon the said borrowers/mortgagors SPS XXX and YYY to vacate the subject property and to turn over actual possession thereof to the herein Petitioner, but said spouses failed and refused to comply with the said demand to the prejudice of the Petitioner, a copy of the demand letter is hereto attached as Annex “ E ”;
         
10.    The Honorable Court has the power and authority, upon ex-parte application of the Petitioner, as purchaser and owner of the aforesaid property, to issue a writ of possession to give the Petitioner actual possession thereof;

          11.    In the case of Nagtalon vs. United Coconut Planters Bank, G.R. No. 172504, July 31, 2013 the Supreme Court held:

“We have long recognized the rule that once title to the property has been consolidated in the buyer’s name upon failure of the mortgagor to redeem the property within the one-year redemption period, the writ of possession becomes a matter of right belonging to the buyer. Consequently, the buyer can demand possession of the property at anytime. Its right to possession has then ripened into the right of a confirmed absolute owner and the issuance of the writ becomes a ministerial function that does not admit of the exercise of the court’s discretion.”


PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this Honorable Court that a Writ of Possession be issued directing the Sheriff of the Honorable Court  to place the herein Petitioner in actual possession of the said foreclosed real property identified as Lot 39 Block 5 of the subd. Plan Pcs-20-000123, situated in Barangay Kalayaan, Makati City, together with all the   improvements  existing  thereon, covered previously by  Transfer Certificate of Title No. T-123456, now by Transfer Certificate of Title No. 100-201367890 in the name of the Petitioner, and to eject therefrom the borrowers/mortgagors SPS XXX and YYY and/or all persons occupying the same and claiming rights under them or under their authority.
         
          Other reliefs just and equitable under the  premises  are likewise being prayed for.

          RESPECTFULLY SUBMITTED. Makati City, 10 October 2014.


ATTY. MMM
123 Hope St., Caramel Village, Makati City
Contact No. 02-8118990
IBP No. 9111189 / 01-15-2014 / Makati City
PTR No. 8212135 / 01-15-2014/ Makati City
Roll of Attorney’s No. 80527
MCLE Compliance No. V-0054010


Republic of the Philippines )
Makati  City                               ) S.S.


VERIFICATION WITH CERTIFICATION OF
NON-FORUM SHOPPING


          I, AAA, of legal age, married and with office and postal address at Block 11 Lot 12, Chocolate Village, Makati City, after having been duly sworn to in accordance with law do hereby depose and state that:

                                     
1.                I am the Petitioner in the above-entitled case;

2.                I have caused the preparation of the foregoing Petition and that the allegations therein are true and correct of my own personal knowledge based on authentic documents on record;

3.                I have not heretofore commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency as are raised in this case;

4.                To the best of my knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals or any tribunal or agency; and
5.                If I should thereafter be aware or learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals or any other tribunal or agency, I will undertake to report this fact within five (5) days there from to this Court.




AAA
Affiant


JURAT

SUBSCRIBED AND SWORN to before me this ____________________, affiant, personally appeared and  exhibited to me his LTO Driver’s License No. N02-12-123456 issued on 18 June 2014 in Quezon City, Philippines.


NOTARY PUBLIC                            
                                                                            
Doc. No. _____;
Page No. _____;
Book No._____;
Series of 2014.









Saturday, April 16, 2016

WRIT OF POSSESSION



After the redemption period, the buyer in a foreclosure sale becomes the absolute owner of the property purchased if it is not redeemed.  As such, he is entitled to the possession of the 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.

However, 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. 3135, 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. (Edralin v. Philippine Veterans Bank, G.R. No. 168523, March 9, 2011, 645 SCRA 75, 85-86).

Exceptions to the rule that the issuance of a writ of possession is a ministerial function of the court:

1) Gross inadequacy of purchase price;
2) Third party claiming right adverse to debtor/mortgagor; and
3) Failure to pay the surplus proceeds of the sale to mortgagor. 
(Nagtalon v. United Coconut Planters Bank, G.R. No 172504, 31 July 2013,).


Requisites for filing Petition for Writ of Possession

ü  Petition for Writ of Possession (see sample Petition for Writ of Possession)
ü  Real Estate Mortgage Agreement
ü  Certificate of Sale
ü  Affidavit of Consolidation of Ownership
ü  New Transfer Certificate of Title in the name of the Mortgagee
ü  Demand letter to turn-over possession of the subject property to the Mortgagee



References:
1.      Section 7, Act 3135, as Amended by Act 4118
2.      G.R. No. 168523, March 9, 2011
3.      G.R. No 172504, 31 July 2013