Cahilig v. Terencio (G.R. No. 164470; November 28, 2011)

CASE DIGEST: VIOLA CAHILIG and ANTONIO G. SIEL, JR. v. HON. EUSTAQUIO G. TERENCIO, Regional Trial Court of Kalibo, Aklan, Branch 8; THE PROVINCIAL SHERIFF, Kalibo, Aklan; and MERCANTILE CREDIT RESOURCES CORPORATION. (G.R. No. 164470; November 28, 2011).

FACTS: Soterania G. Siel executed deeds of real estate mortgage in favor of Moneytrend Lending Corporation (MLC) as security for two promissory notes. MLC assigned the notes and deeds of real estate mortgage to private respondent Mercantile Credit Resources Corporation (MCRC).

As the loans were unpaid, MCRC caused the extrajudicial foreclosure of the mortgages and acquired the mortgaged property as the highest bidder. A final deed of sale was issued in favor of MCRC as Siel failed to redeem the property within the prescribed period MCRC then filed an ex-parte motion for the issuance of a writ of possession over the subject property. Said motion was subsequently granted.

Jhett Tolentino, Corporate Secretary of the petitioner, when he inspected the property after it was foreclosed, it was Viola Cahilig, the daughter of Soterania G. Siel, the previous owner, who was in possession of the same. Hence, the petitioner would want now that a writ of possession be issued in its favor citing the provisions of Sec. 7 of R.A. 3135.

ISSUE: Was the issuance of the writ of possession over the property subject of the foreclosure of the real estate mortgage proper?

HELD: It is on the strength of this third-party claim that petitioners doggedly oppose the trial courts issuance of the said writ of possession arguing that under Section 33, Rule 39 of the Rules of Court, which is made to apply suppletorily to the extrajudicial foreclosure of real estate mortgages under Section 6 of Act 3135, as amended by Act 4118, the possession of the mortgaged property may be awarded to a purchaser in the extrajudicial foreclosure unless a third party is actually holding the property adversely to the judgment debtor.In a number of cases, we have held that the obligation of the court to issue an ex parte writ of possession in favor of the purchaser in an extrajudicial foreclosure sale ceases to be ministerial once it appears that there is a third party in possession of the property who is claiming a right adverse to that of the debtor/mortgagor.

However, unlike in those cases, the third-party claim in the instant case was not presented at the onset of litigation. In fact, it was not the original theory propounded by petitioners when they filed a motion for reconsideration of the Order which first granted the writ of possession in private respondents favor. More importantly, the judicial admissions made by petitioners in their motion were wholly incompatible with their belated claim that they are actually vendees of Soterania Siel's property.

It must be stressed that petitioners raised for the first time their theory that they are third parties (vendees) holding the property adversely to the mortgagor only in their Opposition to the Motion for Issuance of Alias Writ of Possession, after the trial court had already issued the first order granting a writ of possession to private respondent and after the above-mentioned Urgent Motion for Reconsideration (of the original order issuing a writ of possession) had been denied.

Petitioners cannot be allowed to subsequently claim in the same proceedings that they oppose the issuance of the writ of possession because they already owned the subject property prior to the constitution of the mortgage without first showing that the contradictory admission was made through palpable mistake or that no such admission was made. This petitioners failed to do and, worse, they offer no explanation as to why they failed to adduce evidence of the purported sale of the property in their favor at the earliest opportunity. As a consequence thereof, they must be bound by their original admission that they are merely successors in interest of the mortgagor, rather than adverse claimants.