Beruflich Dokumente
Kultur Dokumente
Advocacy Paper
In Partial Fulfillment
Of the course requirements in
DOCULMG (K31)
nd
2 Term Academic Year 2015-2016
Submitted To:
Atty. Hilario S. Caraan
Submitted by:
Salamat, Joannah V.
15 April 2016
RESEARCH BACKGROUND
Act. No. 3135, otherwise known as An Act to Regulate the Sale of Property
section 7 of the said Act, as amended by Act. No. 4118, a writ of possession may
sheriff to enter the land and give possession of it to the person entitled under the
judgement. To issue a writ of possession is ministerial upon the courts after the
foreclosure sale and during the redemption period. In a foreclosure sale, the
redeemed within one year after the registration of sale. The purchaser, then, is
entitled to the possession of the property and can demand that he be placed in
possession at any time following the consolidation of ownership and the issuance
ministerial issuance of writ of possession was laid down in the case of Nagtalon
v. UCPB, they are: 1) gross inadequacy of purchase price 2) Third party claiming
sale to mortgagor.
In the problem given, W forged Xs signature in order to obtain a loan and
mortgage from Y, after which, he absconded with the loan proceeds. As a result,
and the mortgage only after the redemption period. An investigation by the PNP
the Philippines at the time of notarization of the real estate mortgage before a
Philippine Notary Public. The Public Prosecutor found probably cause for a
criminal case for falsification, and the case is now pending in a separate criminal
petition. This paper will supports X opposition based on his aforecited grounds.
RESEARCH PROBLEM
Based on the problem given, should the court grant Y the issuance of writ of
falsified Xs signature. The court should not grant Y the issuance of writ of
possession because the case falls under one of the exceptions as stated in
states that the ministerial issuance of a writ of possession will cease if there is a
transaction but who may have rights therein. Through his falsification of Xs
signature, it was, technically, W, who is a party to the loan and mortgage entered
into with Y. X was unaware when this transpired he was never in a contract or
and Y.
may determine the adverse possession by the third party. A third person
to his ejectment, would be a violation of the basic tenets of due process. He may
only be ejected once he has been given the opportunity to be heard and is
accorded due process. Citing Article 433 of the Civil Code, which states, actual
ownership. The true owner must resort to judicial process for the recovery of the
property. The ex parte issuance of a writ of possession filed by Y, is not the kind
of judicial process stated in Article 433 of the Civil Code. To enforce the writ of
possession against X, who did not take part to the foreclosure proceedings,
would amount to the taking of real property without the benefit of proper judicial
pending in a separate criminal court, the falsification case would properly confirm
that X remains the true owner of the subject property and that he never entered
into a contract with Y. This pending criminal case involves the rights of a third
person, X; the court should first hear the merits of the case before they could
decide on whether to grant Y the writ of possession. If the execution of the writ
the document of the foreclosure was falsified rendering it null and void. The
PNP and NBIs confirmation that Xs signature was indeed forged, presents clear
and convincing evidence and rebuts the evidentiary weight of the notarized public
have exercised due diligence to ensure that it was indeed X he was entering into
an agreement with. Even for the sake of argument, Y will state that he practiced
due diligence, is not sufficient to prove that he is a mortgagee in good faith. This
doctrine does not apply to a situation where the title of the subject property is still
in the name of the rightful owner and the mortgagor is a different person
innocent mortgagee and the general owner will not lose his title. A mortgage is
void and cannot prejudice the registered owner whose signature was falsified. In
the case of Lara, et al., v. Ayroso, Justice Reyes ruled that according to the last
CONCLUSION
From the aforementioned arguments, the court should not grant Y the
issuance of writ of possession for the mere fact that the entire basis for the
petition stemmed from a falsified document; the mortgage, sale, and foreclosure,
therefore, shall be declared null and void. The case may be considered as
peculiar and may fall under the exceptions as stated in Nagtalon v. UCPB,
Issuing the writ of possession would, then, violate Xs rights as the rightful owner
China Banking Corporation v. Lozada, G.R. No. 164919, July 4, 2008, 557 SCRA
177, 196
Erea v. Querrer-Kauffman, G.R. No. 165853, June 22, 2006, 492 SCRA 298,
319, citing Cavite Development Bank v. Lim, 324 SCRA 346, 358 (2000)
Nagtalon v. United Coconut Planters Bank, G.R. 172504, July 31, 2013, 702
SCRA 615
Ong v. Court of Appeals, G.R. No. 121494, June 8, 2000, 333 SCRA 189, 195
Rural Bank of Cabadbaran, Inc. v. Jorgita Melicio-Yap, et al. G.R. No. 178451,
30 July 2014
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