Arquiza vs. CA and Equitable PCI Bank 498 Phil. 793 FACTS: Spouses Arquiza, obtained a loan from private respondent Equitable PCI-Bank for P2.5 million. To secure the payment, the petitioners executed a Real Estate Mortgage over their parcel of land. The spouses defaulted in the payment of their loan so the private respondent filed a petition for extrajudicial foreclosure of the real estate mortgage. A public auction was held in accordance with Act No. 3135, as amended by Act No. 4118, during which the mortgaged property, together with all the improvements existing thereon, was sold to the private respondent as the highest bidder. Accordingly, a Certificate of Sale over the property was issued in favor of the private respondent. Following the expiry date of the redemption period without the petitioners having exercised their right to redeem the property, the private respondent consolidated its ownership over the subject property.
The petitioners filed a complaint against the private respondent and the sheriffs with the Regional Trial Court (RTC) of Quezon City for the declaration of the nullity of the promissory note, real estate mortgage and the foreclosure sale and damages with a plea f or injunctive relief for the suspension redem ption period. Private respondent demanded that the petiti oners vacate and surrender possession of the subject property, but the latter refused to do so. This compelled the private respondent to file an Ex Parte Petit ion for Issuance of a Writ of Possession, also with RTC in Quezon City. RTC: granted the issuance of Writ of Possession.
The petitioners appealed the decision to the CA alleging that: 1) The lower court (LC) erred in granting the ex parte petition, 2) That the LC failed to apply the rule on litis pendentia, 3) the LC ignored the rule on forum shopping in an initiatory pleading like the ex-parte petition in this case. initiatory CA: affirm the appealed decision. The petition for the issuance of a writ of possession was not an initiatory pleading; hence, a certification against forum shopping was not necessary. The appellate court also held that there could be no forum shopping because a petition for the issuance of a writ of possession is but an incident in the transfer of title. MR denied, thus this petition for review on certiorari with the CA. ISSUE: W/N the petition for Issuance of writ of Possession is an initiatory pleading? W/N the case falls under litis pendentia? W/N the rule on forum shopping was violated? RULING: Petition is denied for lack of merit. The ruling of CA is correct. 1) The ex parte petition for the issuance of a writ of possession is not an initiatory pleading. Although the
private respondent denominated its pleading as a petition, it is, nonetheless, a motion. What distinguishes a motion from a petition or other pleading is not its form or the title given by the party executing it, but rather its purpose. The office of a motion is not to initiate new litigation, but to bring a material but incidental matter arising in the progress of the case in which the motion is filed. A motion is not an independent right or reme dy, but is confined to incidental matters in the progress of a cause. An application for a writ of possession is a mere incident in the registration proceeding. Hence, although it was denominated denominated as a “petition, “ petition,”” it was in substance merely a motion. It bears stressing that Section 7 of Act No. 3135, as amended by Act No. 4118, specifically provides that the buyer at public auction may file a verified petition in the form of an ex parte motion.
2) No litis pendentia in this case. Well established is the rule that after the consolidation of title in the
buyer’s name for failure of the mortgagor to redeem, the writ of possession becomes a matter of right. Its issuance to a purchaser in an extrajudicial foreclosure is merely a ministerial function. The issuance of the writ of possession being a ministerial function, and summary in nature, it cannot be said to be a judgment on the merits, but simply an incident in the transfer of title. Hence, a separate case for annulment of mortgage and foreclosure sale cannot be barred by litis pendentia or res judicata. 3) No forum shopping. The test to determine whether a party violated the rule against forum shopping is
whether the elements of litis pendentia are present, or whether a final judgment in one case will amount to res judicata in another. 34 In other words, when litis pendentia or res judicata does not exist, neither can forum shopping exist NOTE: The requisites of litis pendentia are the fo llowing:
(a) identity of parties, or at least such as representing the same interest in both actions; (b) identity of rights asserted and relief praye d for, the relief being founded on the same facts; and (c) the identity of the two cases such that judgment in one, regardless of which party is successful, would amount to res judicata in the other. And one element of res judicata is that the judgment or order must be on the merits of the case.
