Motos vs. Real Bank (A Thrift Bank), Inc. (Simagala) 4.
4. Motos filed a petition for certiorari under R65 after being served a third notice
G.R. No. 171386 July 17, 2009
Petitioners: GLORIA R. MOTOS and MARTIN MOTOS
Respondents: REAL BANK (A THRIFT BANK), INC.
Topic: Appealability of order denying motion to quash writ of possession
EMERGENCY RECIT:
Sps. Motos obtained several loans fr. Real Bank which they secured by mortgaging
their land. Motos failed pay prompting the Bank to extrajudicially foreclose the mortgage
where it emerged as the highest bidder and the sheriff issued a certificate of sale. When
redemption period lapsed, the bank filed an affidavit of consolidation and RD issued
TCT in its favor. Bank then filed an ex parte petition for issuance of the writ which the
RTC granted and the sheriff served the same together with a notice to vacate to Motos
who refused to comply and instead filed a motion to quash the writ which was denied
as well as their notice of appeal. CA upheld the issuance of the writ but directed RTC
to give due course to Motos petition, hence this petition. SC held that the remedy of
the Sps notice of appeal was erroneous as the proper remedy is to file for a petition
to set aside the validity of the sale and writ, the denial of the motion to quash does not
settle the issue on validity and is at best interlocutory which under the Rules is not
appealable. Thus, the petition as denied.
Doctrine/s:
1. Denial of the motion to quash the writ of possession did not settle the issue
on validity of the sale and is an interlocutory order, thus unappealable.
Facts:
1. Sps. Martin and Gloria Motos (Motos) acquired several loans fr. Real Bank
(Bank) in the total amount of 4M which was secured by mortgaging their land.
Motos failed to pay prompting the Bank to extrajudicially foreclose the
mortgage. Bank emerged as the highest bidder and the sheriff issued a
Certificate of Sale w/c the Motos filed with the Registry of Deeds (RD).
2. When the 1year redemption period lapsed, the Bank filed an affidavit of
consolidation with RD and was issued a TCT under its name. After which, the
Bank filed an Ex Parte Petition for issuance of a writ of possession with RTC
which it granted (2002) and issued one (2003). Sheriff served a copy of the
writ and a notice to vacate to Motos who refused to comply and filed Motion
to Quash Writ of Possession on the ground that they were not heard on the
petition.
3. RTC:
Motion to quash denied (March 04).
Notice of appeal by Motos denied (May 04).
MR denied (June 04).
1
SEC. 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
to vacate with CA.
5. CA: Partly granted.
Issuance of writ and Denial of motion to quash affirmed.
o It is the ministerial duty of RTC to issue writ to the Bank as
it had consolidated title to the property in its name.
Denial of notice of appeal and MR set aside, RTC to give due course
to Motos notice of appeal.
Banks and Motos MR both denied.
6. Hence, this petition for review on certiorari. **Note that the petition was
denominated as petition for certiorari under R65 but posed an issue and
presented arguments cognizable under petition for review on certiorari under
R45, thus the SC treated the petition as such.
Issue/s:
1. Whether a writ of possession may be issued ex parte. YES
2. Whether an order denying a motion to quash writ of possession is
appealable. NO
3. Whether a writ of possession can be enforced pending appeal. YES **Sole
issue raised by Motos in his petition.
Held:
Issue 1
1. A petition for the issuance of a writ of possession is in the nature of an ex
parte motion, taken or granted at the instance and for the benefit of one party,
without need of notice to or consent by any party who might be adversely
affected.
2. During the period of redemption, it is ministerial upon the court to issue a writ
of possession in favor of the purchaser, the law only requires that the proper
motion1 be field, bond approved and no 3rd person is involved. Any question
re: regularity and validity of the sale is left to be determined in a subsequent
proceeding, such question cannot be raised as justification to oppose
issuance of the writ.
3. Upon expiration of the redemption period, the right of the purchaser to
possession becomes absolute basis of which is the purchasers ownership.
Mere filing of ex parte motion for issuance of writ would suffice and a bond is
no longer necessary.
4. In this case, Motos failed to redeem the property making the Bank the absolute
owner of the property and it became the RTCs ministerial duty to issue the
writ once the bank filed the motion for its issuance. By its nature, Motos were
neither entitled to copy of the petition nor to a notice of hearing. Any objection
ninety-four of the Administrative Code, or any other real property encumbered with a mortgage duly registered in the office of any
register of deeds in accordance with any existing law, and in each case the clerk of court shall, upon the filing of such petition,
collect the fees specified in paragraph eleven of section one hundred and fourteen of Act Numbered Four hundred and ninety- six
as amended by Act Numbered Twenty-eight hundred and sixty- six, and the court shall, upon approval of the bond, order that a
writ of possession issue addressed to the sheriff of the province in which the property is situated, who shall execute said order
immediately.
 they may have on the validity of the sale and writ should be threshed out in a
subsequent proceeding under Sec. 8 of Act 31352 which provide that the
mortgagor may file a petition to set aside the sale and writ and in case the LC
denies, it he may appeal the same, however, the possession shall continue
pending appeal.

Issue 2
1. An interlocutory order is one which does not dispose of the case completely
but leaves something to be decided upon. Under Section 1(c), Rule 41 of the
Rules, no appeal may be taken from an interlocutory order.

2. Motos erroneously substituted a motion to quash writ for a petition to set aside
sale and writ. The order denying their motion did not settle the issue on validity
of the sale and is at best interlocutory. Thus, CA erred in directing RTC to give
due course to Motos appeal.

Issue 3
1. As the denial of the motion to quash the writ is an interlocutory order, it is
unappealable. Even assuming that Motos followed the procedure and
successfully appealed, pursuant to Sec. 8 of Sct. 3135, order of possession
shall continue in effect pending appeal.

Dispositive Portion: WHEREFORE, the petition is DENIED. The Decision dated May
16, 2005 of the Court of Appeals in CA-G.R. SP No. 85064 is AFFIRMED WITH
MODIFICATION in that the Orders dated May 5, 2004 and June 22, 2004 of the
Regional Trial Court of Quezon City, Branch 222 in LRC No. Q15302 (02) are
REINSTATED. Costs against petitioners.

2
SEC. 8. Setting aside of sale and writ of possession. The debtor may, in the proceedings in which possession was requested, justified, it shall dispense in his favor of all or part of the bond furnished by their person who obtained possession. Either of the
but not later than thirty days after the purchaser was given possession, petition that the sale be set aside and the writ of possession parties may appeal from the order of the judge in accordance with section fourteen of Act Numbered Four Hundred and Ninety-
cancelled, specifying the damages suffered by him, because the mortgage was not violated or the sale was not made in accordance Six; but the order of possession shall continue in effect during the pendency of the appeal.
with the provisions hereof, and the court shall take cognizance of this petition in accordance with the summary procedure provided
for in section one hundred and twelve of Act Numbered Four Hundred and Ninety-Six; and if it finds the complaint of the debtor