Parties: AURORA TAMBUNTING, ANTONIO TAMBUNTING, JOSE P.

TAMBUNTING and THE

ACTING PROVINCIAL SHERIFF FOR THE PROVINCE OF RIZAL, petitioners,
vs.
HON. COURT OF APPEALS, DAMASO R. CRUZ, and MONICA ANDRES, respondents

Doctrine: One issue of a newspaper of general circulation is not substantial compliance with
the required publication of once (1) a week for at least three (3) consecutive weeks.

Facts: Private respondents, spouses Damaso R. Cruz and Monica Andres (hereafter, the Cruzes)
obtained a loan from petitioners, spouses Antonio and Aurora Tambunting (hereafter, the
Tambuntings) in the amount of P3,600.00. The Tambuntings are engaged in the lending-pawnshop
business using the name and style "Agencia de Tambunting", with co-petitioner Jose P. Tambunting
as Manager. The loan was evidenced by a promissory note executed by the Cruzes, payable within
four (4) months from 16 December 1959, with interest at 12% per annum. As security for payment of
the loan, a Deed of Real Estate Mortgage was executed by the Cruzes in favor of the Tambuntings
over a parcel of land.

Due to debtors' failure to pay the loan obligation at maturity, a petition for extrajudicial foreclosure of
mortgage was filed by the creditors on 17 March 1967. On 4 July 1967, a notice of sheriff's sale was
posted announcing an auction sale on 2 August 1967 at 10:00 o'clock in the morning. As shown by
the affidavit of publication, the notice of sale was published in the Rizal Chronicle, a newspaper of
general circulation in Rizal province, on 12, 19, and 26 July 1967.

On 2 August 1967, the Cruzes instituted an action against the Tambuntings for annulment of
mortgage and damages with prayer for a writ of preliminary injunction before the Court of First
Instance of Rizal, Branch 6-Pasig (docketed as Civil Case No. 10180). On the same day, a
temporary restraining order was issued by the court enjoining herein petitioners from proceeding
with the scheduled sale and to suspend the same until further orders from the court.

When the temporary restraining order was dissolved on 1 September 1967, the proposed sale was
moved to 20 October 1967. Postings of sheriff's notice of sale were made on 15 September 1967
with a re-publication of said notice in the Rizal Chronicle on 27 September, 4 & 11 October, 1967.
However, on 19 October 1967, petitioners were again directed by the court to hold the scheduled
sale in abeyance due to a motion for reconsideration filed by the Cruzes in regard to the lifting of the
temporary restraining order.

On 26 January 1968, the Cruzes thru counsel wrote the Provincial Sheriff of Rizal asking that the
auction sale set for that day (26 January 1968) be postponed to some other date considering that
there was no compliance with the notices required by law. On the same date, the Cruzes again thru
counsel sent the sheriff a notice of lis pendens informing the latter that Civil Case No. 10180 had
been filed by them for the annulment of the mortgage, upon the foreclosure of which the sale was to
be conducted, and that such action affects title to the property.

Private respondents filed a supplemental complaint in Civil Case No. 10180 impleading Tambunting
Realty Corporation, the Provincial Sheriff and the Register of Deeds of Rizal, the first, as the
subsequent vendee of the property, the second, as the officer responsible for holding the
extrajudicial foreclosure sale of 26 January 1968, and the third, for the subsequent transfers of the
mortgaged property despite alleged non-compliance with the requirements of Act 3135, Sec. 3 (as
amended by Act 4118) on posting and publication of the notice of foreclosure sale.
RTC- voided the foreclosure sale

CA- Affirmed RTC decision reasoning that the petitioners deviated from the posting and publication
requirements of law which rendered the notice of sale ineffective and voided the auction sale.

Issue/s:

1. Did the Court of First Instance and the Court of Appeals erroneously nullified and set aside the
auction sale for lack of compliance with the formalities of law?

2. Did the Court of Appeals erred in granting the Cruzes' petition for accounting of fruits, etc. after
judgment had been rendered, because this was tantamount to a modification of the trial court's
judgment, and an appellee, who is not an appellant, cannot seek affirmative relief from the appellate
court?

Ruling: 1. No. Questioned decision of the lower court and appellate court is affirmed.

Act. No. 3135 (governing extrajudicial foreclosure of real estate mortgage), as amended by Act No.
4118, reads:

SEC. 3. Notice shall be given by posting notices of the sale for not less than twenty
(20) days in at least three public places of the municipality or city where the property
is situated, and if such property is worth more than four hundred pesos, such notice
shall also be published once a week for at least three consecutive weeks in a
newspaper of general circulation in the municipality or city.

The rule is that statutory provisions governing publication of notice of mortgage foreclosure sales
must be strictly complied with, and that even slight deviations therefrom will invalidate the notice and
render the sale at least voidable.

One issue of a newspaper of general circulation is not substantial compliance with the required
publication of once (1) a week for at least three (3) consecutive weeks.  Petitioners claim the
publisher's affidavit of publication is merely a customary proof, hence, it should not be considered as
the sole evidence of publication. This may be so in the presence of equally convincing evidence. In
the case at bar, however, there is no such other proof of publication. To show compliance, the
published notices and certificate of posting by the sheriff of the notice of sale of 26 January 1968
should have been presented. They do not appear in the record. Neither can the sale be considered
as an adjournment of an earlier sale under Sec. 24 of Rule 39 of the Rules of Court.  As correctly
posed by the Court of Appeals, why was there one (1) publication of the notice of sale scheduled on
26 January 1968?  The presumption of compliance with official duty has been rebutted by the failure
to present proof of posting and publication of the notice of sale of 26 January 1968.

2. No. The granting of petition for accounting of fruits by the Court of Appeals is in accordance with
the law. Private respondents' petition for accounting, etc. did not really seek a modification of the
judgments of the trial court and the Court of Appeals. The remedy sought (accounting and offsetting
of accounts) was a direct clear-cut consequence of an equally clear-cut decision which, in effect,
held that the Cruzes were never divested of their ownership over the property in question. In other
words, the accounting sought and granted is merely an incident of the declared respondents' right of
ownership under the Civil Code
Parties: Spouses REMPSON SAMSON and MILAGROS SAMSON; and REMPSON REALTY &
DEVELOPMENT CORPORATION, Petitioners, v. 

Judge MAURICIO M. RIVERA, in His Capacity as Presiding Judge of the Regional Trial
Court of Antipolo City, Branch 73; Atty. JOSELITA MALIBAGO-SANTOS, in Her Capacity
as Ex Officio Sheriff, RTC of Antipolo City; and LENJUL REALTY
CORPORATION, Respondents

Facts:
Petitioner Spouses Rempson and Milagros Samson incurred from Far East Bank and Trust
Company (FEBTC) loan obligations, the principal of which amounted to fifty-five million pesos
(₱55,000,000).In order to secure the payment of the loan obligations, Spouses Samson executed in
favor of FEBTC two real estate mortgages covering five parcels of commercial property located at
Antipolo City, Rizal.

Petitioner spouses failed to settle their loan obligations. Thus, FEBTC filed an Application for Extra-
Judicial Foreclosure of Real Estate Mortgage.

Acting on the application, the Office of the Clerk of Court and Ex-Officio Sheriff issued a Notice of
Sheriff Sale dated May 19, 2000, setting the foreclosure sale on June 22, 2000. There was only one
bidder during the foreclosure sale, so in accordance with AM 99-10-05-0, the sheriff postponed the
auction to July 5, 2000. The auction sale proceeded with two bidders participating -- FEBTC and
Lenjul Realty and Development Corporation, with the latter declared as the highest bidder. A
Certificate of Sheriff’s Sale was issued confirming the sale of the foreclosed properties to the winning
bidder. Shortly thereafter, the Certificate of Sale was registered with the Registry of Deeds of
Antipolo City. Then new Certificates of Title over the foreclosed properties were issued by the
Register of Deeds of Antipolo City in favor of Lenjul Realty Corporation.

Private Respondent Lenjul Realty filed a Petition for the Issuance of a Writ of Possession. While the
Petition was pending, Spouses Samson and Rempson Corporation filed with the Antipolo City RTC,
an action for Annulment of Extra-Judicial Foreclosure and/or Nullification of Sale and the Certificates
of Title, plus Reconveyance and Damages with Prayer for a Temporary Restraining Order and/or
Writ of Preliminary Injunction. Petitioners filed it against Lenjul Realty Corporation, FEBTC, Bank of
the Philippine Islands, Joselita Malibao-Santos in her capacity as the clerk of court and ex officio
sheriff of the Antipolo City RTC, and the Register of Deeds of Antipolo City. 

 Upon motion of Petitioner Rempson Realty and Development Corporation, Judge Caballes issued
an Order directing the consolidation of the civil case with the land registration case. Judge Rivera
issued an order denying the consolidation of the Petition for Writ of Possession and the civil case for
annulment of foreclosure. Judge Rivera gave due course to the Petition for the Issuance of a Writ of
Possession and denied the Opposition of Spouses Samson and Rempson Corporation.

A Writ of Possession was issued directing the sheriff of the Antipolo City RTC to place Lenjul Realty
Corporation in physical possession of the foreclosed properties. On the same date, the sheriff issued
a Notice to Vacate addressed to Rempson Corporation, ordering it to leave the properties on or
before March 2, 2002.

Petitioners filed with the Court of Appeals Special Civil Action for Certiorari with
Prohibition/Mandamus under Rule 65 with an Application for Issuance of a Writ of Preliminary
Injunction and/or Temporary Restraining Order to annul the orders of Judge Rivera.
Court of Appeals held that the issuance of a writ of possession was a ministerial function that was
done upon the filing of the proper motion and the approval of the corresponding bond.  It further ruled
that prohibition did not lie to enjoin the implementation of the writ

Issue:
(1) whether the trial court committed grave abuse of discretion in granting the Petition for the
Issuance of a Writ of Possession; and

(2) whether the filing of a Petition for Certiorari with the Court of Appeals was the proper remedy.

Ruling: 1. No. The Court of Appeals correctly sustained the issuance of the Writ of Possession. The
issuance of the Writ is explicitly authorized by Act 3135 37 (as amended by Act 4118), which regulates
the methods of effecting an extrajudicial foreclosure of mortgage. 38 Section 7 thereof provides:

"Section 7. Possession during redemption period. – In any sale made under the provisions of
this Act, the purchaser may petition the [Regional Trial Court] 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 in accordance with any existing law, and in each case the clerk of
the 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."

Under the provision cited above, the purchaser in a foreclosure sale may apply for a writ of
possession during the redemption period by filing for that purpose an ex parte motion under oath, in
the corresponding registration or cadastral proceeding in the case of a property with torrens title.
Upon the filing of such motion and the approval of the corresponding bond, the court is expressly
directed to issue the writ.

2. No. The Court of Appeals correctly declared that petitioners pursued the wrong remedy. A special
civil action for certiorari could be availed of only if the lower tribunal has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and if there
is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law.

There was no grave abuse of discretion, petitioner should have filed an ordinary appeal instead of a
petition for certiorari.

There is grave abuse when the court -- in the exercise of its judgment -- acts in a capricious,
whimsical, arbitrary or despotic manner equivalent to acting with lack of jurisdiction. Considering that
the trial court issued the Writ of Possession in compliance with the express provisions of Act 3135, it
cannot be charged with having acted in excess of its jurisdiction or with grave abuse of discretion.