REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

FIRST JUDICIAL REGION
BRANCH 69
LINGAYEN, PANGASINAN

IN RE: PETITION FOR ISSUANCE

OF WRIT OF POSSESSION OVER
REAL PROPERTY COVERED BY
TCT NO. 026-2020006739 OF THE
REGISTRY OF DEEDS OF LINGAYEN,
PANGASINAN

LANDBANK OF THE PHILIPPINES,

Petitioner, LRC NO. 779
x….……………………………………….x

FORMAL ENTRY OF APPEARANCE

WITH MOTION FOR RECONSIDERATION
OF THE DECISION GRANTING
THE WRIT OF POSSESSION

MOVANTS-OPPOSITORS, SPOUSES LARRY DE QUINTOS

and HONARIA DE QUINTOS, by and through the undersigned
counsel, and to this Honorable Court, most respectfully aver:

BY WAY OF MANIFESTATION

1. DE GUZMAN LAW OFFICES AND ASSOCIATES respectfully

manifest before this Honorable Court that it is formally
entering its appearance as the retained law firm and counsel
for the SPOUSES-MOVANTS.

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2. It is therefore requested that the Honorable Court will please
take note of the entry of appearance of DE GUZMAN LAW
OFFICE AND ASSOCIATES as the counsel of record for
Spouses De Quinto.

3. Further, that a copy of the notices, orders, resolutions and all

other processes issued and to be issued by the Honorable
Court in connection with the instant case be furnished
forthwith to De Guzman Law Offices at the indicated office
address made below.

4. Furthermore, as made mandatory by the Supreme

Court, the Honorable Court will please take notice of the e-
mail address and contact numbers of counsel as indicated
below for purposes of furnishing the court’s processes via
electronic mail, instead of and/or in addition to sending them
by snail mail.

BY WAY OF MOTION

5. Spouses move for a Reconsideration of the Decision which

granted the Ex-Parte Petition of LBP asking for the issuance of
a Writ of Possession over the real property presently occupied
and which is in the Spouses’ possession.

6. The facts can be culled in the Amended Petition filed by

Petitioner Land Bank of the Philippines (hereafter, LBP).

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Thusly:

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 7. Here, the petitioner-mortgagee LBP took its own sweet time,
bloating the amount of the loan and purported interests, and,
worst, the mortgagee bank inexplicably and unreasonably
waited for four (4) long years after the foreclosure sale to
apply by ex-parte petition for a writ of possession. In such
situation, it has already been settled that the issuance of
the writ becomes inequitable.

8. Jurisprudence teaches us that in like situations, the grant of

the writ is not purely ministerial. Crystal, granting the writ
becomes inequitable.

9. Thusly:

However, the CA noted that in the case

of Barican v. Intermediate Appellate
Court[1 the Supreme Court deemed it
inequitable to issue a writ of possession in favor
of the purchaser in the auction sale. In Barican,
the mortgagee bank waited five years from
the time of the foreclosure before filing a
petition for the issuance of a writ of
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possession.

1
245 Phil. 316 (1988).
2
JOSE P. JAYAG AND MARILYN P. JAYAG, PETITIONERS, VS. BDO UNIBANK, INC., EX-OFFICIO SHERIFF, AND/OR
ASSIGNED SHERIFF, RESPONDENTS G.R. No. 222503. September 14, 2021.
https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/67645 last visited at the web on 1/20/24.

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10. After the filing of the Amended Petition and after the
conduct of an ex-parte summary hearing that are both
unbeknownst by and without due notice to the spouses who are
the occupants and in adverse, open, and continuous
possession of the subject real property, the Honorable Court
issued the questioned Decision on December 21, 2023 which
essentially granted Petitioner LBP’s prayer for relief, id est, the
issuance of a Writ of Possession.

11. The present controversy rises to a consideration of the

constitutional right to due process, a right of the spouses that
was horribly violated by Petitioner LBP whose actuations and
applications for the writ are all shrouded in mystery and
calculated to render Spouses practically inutile and absolutely
helpless in making a timely and adequate objection to the writ.
Perforce, the writ should be nullified and, at the very least,
recalled.

12. For the record, the alleged Notices To Vacate were never
personally received by the spouses. The Bank cannot casually
send them by mail without any explication why they do not
deem prudent to personally serve the same to the spouses.

13. Sadly, the manner by which the bank officials and

officers tasked to give due notices acted in cloaked stealth,
rendered the spouses totally clueless and ignorant of the legal
proceedings. The cavalier manner speaks of humungous

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 volumes of the Bank’s duplicity and less than forthright
dealings with its borrowers.

14. There is an abject failure to comply with the substantial

and procedural requirements for LBP’s ex-parte application for
Writ of Possession when it did not make a valid service of due
notice to the spouses who are in possession and who are the
very actual and adverse occupants of the real property subject
of the mortgage especially when the Spouses have questions
over the bank’s computation of the amount of the alleged
defaulted loan, interests, penalties and miscellany of charges.

15. The rule is that the mortgagor is entitled to the

possession of the mortgaged property during the redemption
period. The purchaser at the foreclosure sale may however file
with the regional trial court where the property is situated a
petition for issuance of writ of possession, furnishing bond in
an amount equal to the use of the property for twelve months,
to indemnify the mortgagor in case the sale was made without
any violation of the mortgage or without complying with the
requirements of Act No. 3135. The petition shall be under
oath and in the form of an ex parte motion. The court shall,
upon approval of the bond, order that a writ of possession
issue, addressed to the sheriff, who shall execute said order
immediately.
16. After the lapse of the redemption period, the purchaser
who cannot take possession because of the adverse possession
of the mortgagor or a third person may file an ex parte motion
for the issuance writ of possession, without need of posting a

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 bond. The reason is that the purchaser is already entitled to
possession as a matter of right because ownership of the
property has vested in him (IFC Service Leasing & Acceptance
Corporation v. Nera, 30 January 1967; Hernandez v. Ocampo,
15 August 2016). There is no need for the purchaser to file a
separate and independent action to obtain possession of the
property (Tan Soo Huat v. Ongkiko, 63 Phil. 746 [1936]). The
purchaser at the public auction only has to file a motion for
the issuance of a writ of possession pursuant to Act No. 3135.

17. The issuance of a writ of possession in favor of the

purchaser is a ministerial duty of the court. The mortgagor
does not need to be impleaded in or notified of the proceedings
which are ex parte (Gatuslao v. Yanson, 21 January 2015, Del
Castillo, J.). Section 7 of Act No. 3135 is an ex parte judicial
proceeding brought for the benefit of only one party and
without notice to or consent by any person adversely affected;
it is a proceeding wherein relief is granted without an
opportunity for the person against whom the relief is sought to
be heard (Metrobank v. Abad Santos, 15 December 2009,
Brion, J.).

18. A line of cases has however held that the court’s

obligation to issue an ex parte writ of possession in favor
of the purchaser ceases to be ministerial where a third
party is claiming the property adversely to that of the
mortgagor. Jurisprudence has held that the last
paragraph of Section 33, Rule 39 of the Rules of Court,
which provides that possession of the property shall be

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 given to the purchaser unless a third party is actually
holding the property adversely to the judgment obligor,
may be extended to extrajudicial foreclosure pursuant to
Section 6 of Act No. 3135 (Cabling v. Lumapas, 18 June
2014; Sy v. China Bank, 17 June 2020).

19. The rule that the issuance of a writ of possession in favor

of a purchaser in the extrajudicial foreclosure sale becomes a
ministerial function after the mortgagor has failed to redeem
the property within the prescribed period, is not without
exceptions.

20. Jurisprudence established the following exceptions to the

general rule:1) Gross inadequacy of purchase price; [2) A third-
party is claiming right adverse to debtor-mortgagor; and 3)
Failure to pay the surplus proceeds of the sale to mortgagor.

21. What is more, Spouses have clear and legitimate

objections there being a nullity of the foreclosure sale that is
demanding payment of an unexplained and unsupported huge
loan balance which includes excessive, unconscionable and
exorbitant interests. It is unabashed greed and it is totally
opportunistic of Petitioner when it waited for years before
applying for the writ, compounding interests on interests,
obviously moved with the intent to unjustly enrich itself at the
expense of the spouses and in the process inequitably made
astronomical and bloated amounts of the original loan to
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 ensure that the spouses’ redemption of the property and
payment of the loan becomes insanely difficult, if not
impossible.

22. Some of the cases which hold that the issuance of the
writ of possession ceases to be ministerial when there is a
third-party adverse possessor also cite Article 433 of the Civil
Code as protecting the adverse possessor:

“ART. 433. Actual possession under

claim of ownership raises a disputable
presumption of ownership. The true owner
must resort to judicial process for the
recovery of the property.”

23. The Petition therefore filed by LBP should be dismissed

for lack of merit, the present controversy being one of those
cases where the High Court has held that the writ of
possession’s issuance is not purely ministerial.

24. In fine, the purported, true owner, NIDA CALISO,

must resort to judicial process for the recovery of the
property.

RELIEFS

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 WHEREFORE, BECAUSE OF THE FOREGOING PREMISES,
it is respectfully prayed that:

1. The Honorable Court will please issue an Order granting

the Motion for Reconsideration by setting aside, reversing
and nullifying the questioned Decision,

2. Instead, an Order will now please be issued granting

forthwith and with utmost dispatch, a recall of the Writ of
Possession, and

3. Accordingly, as due process warrants, the Court will please

allow the spouses sufficient and reasonable time for them to
make and file an informed, adequate and intelligent Formal
Opposition and, thereby, be likewise allowed to recall
Petitioner’s witnesses for cross-examination, and to be
allowed to adduce controverting documentary, object and
testimonial evidence to substantiate their objections to the
writ.

OTHER RELIEFS, just and equitable under the premises, are

likewise prayed for.

RESPECTFULLY SUBMITTED this 20th day of January 2024

at Urdaneta City, Pangasinan, Philippines for the City of Lingayen,
Pangasinan, Philippines.

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DE GUZMAN LAW OFFICE

AND ASSOCIATES

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