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METROBANK v.

SANTOS
December 15, 2009 | PONENTE | TOPIC

PETITIONERS: METROPOLITAN BANK & TRUST COMPANY

RESPONDENTS: HON. SALVADOR ABAD SANTOS, Presiding Judge, RTC, Br. 65, Makati City
and MANFRED JACOB DE KONING

SUMMARY: Metrobank foreclosed and purchased a condominium unit owned by De Koning after the latter failed to pay for a loan to
the former. After De Konings refusal to turn over possession of the condo unit, Metrobank filed an ex parte petition for a writ of
possession over the property. De Koning filed an MTD on the ground that Metrobank did not attach a certification against non forum
shopping to its petition. Metrobank argued that its petition is not an initiatory pleading asserting a claim, and therefore does not require
such certification. Court agreed with Metrobank and held that although the ex parte petition of Metrobank was a petition in form, it
was, in substance actually a motion (neither a complaint nor an initiatory pleading), making a ceritification against forum shopping
unnecessary.

DOCTRINE:
A certification against non-forum shopping is required only in a complaint or in any other initiatory pleading asserting a claim for
relief. An ex parte petition for the issuance of a writ of possession is neither of the two - it is merely a motion. Therefore, it does not
require such a certification.

FACTS:
1. De Koning obtained a P2M loan from Metrobank evidenced by a promissory note and secured by a real estate mortgage over a
condominium unit.
2. After De Konings failure to pay, Metrobank foreclosed the mortgage and bought the condo unit, being the highest bidder in the
auction sale.
3. The redemption period lapsed, so Metrobank demanded that De Koning turn over possession of the condo unit.
4. De Koning refused, prompting Metrobank to file an ex parte petition for a writ of possession over the foreclosed property with
the RTC of Makati.
5. Counsel of De Koning filed an MTD on the ground that the petition of Metrobank violated S5 R7 ROC, which requires
attachment of a certification against forum shopping to a complaint or other initiatory pleading. Thus, the petition of Metrobank
was dismissed.
6. CA affirmed, adding that S5, R7 is not limited to actions, but covers any initiatory pleading that asserts a claim for relief. Also,
Metrobank failed to disclose in the verification and certification that there are already 2 cases filed by De Koning (one with the
RTC, the other a petition for certiorari with the CA), both of which involve the same issues and subject matter as that of
Metrobanks petition: its right to foreclose, and consequently, its right to a writ of possession.
7. Metrobank argues that its petition is not covered by S5, R7 ROC
1. ex parte petition for the issuance of a writ of possession is not an initiatory pleading asserting a claim
2. it is a mere incident in the transfer of title over the real property acquired
3. therefore, a certification against forum shopping is not required

ISSUES/HELD
1. WON an ex parte petition for the issuance of a writ of possession is an initatory pleading asserting a claim, which is covered by
the rule on certification against non-forum shopping (Sec. 5, Rule 7 ROC). NO

RATIO:
The certification against forum shopping is required only in a complaint or other initiatory pleading. An ex parte petition for
the issuance of a writ of possession is neither of the two.
One of the ways a writ of possession may be issued is in an extrajudicial foreclosure of a REM.
In accordance with Section 7 of Act No. 3135 as amended by Act No. 4118, in order to obtain a writ of possession, the purchaser in a
foreclosure sale must file a petition, in the form of an ex parte MOTION, in the registration or cadastral proceedings of the registered
property.
This pleading, although denominated as a petition is actually considered as a MOTION.
Reason (Sps. Arquiza v. CA):
A motion is not an independent right or remedy; its purpose is not to initiate new litigation. It is confined to material but incidental
matters in the progress of a case. It refers to a collateral issue and is dependent upon the principal remedy.
An application for a writ of possession is a mere incident in the registration proceeding.
Therefore, although it may a petition in form, it is in substance merely a motion.
In an extrajudicial foreclosure of real property, the basis of the purchasers right to possession is his/its right of ownership.
There is no need to file a separate and independent suit for possession the mere filing of an ex parte motion for the
issuance of the writ of possession is enough.
Since the ex parte petition for the issuance of a writ of possession filed by the respondent is neither a complaint nor an
initiatory pleading, a certificate against non-forum shopping is NOT required.

Case remanded to RTC.