FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated 26 JUN 2002.

G.R. No. 149794 (Clarita L. Ramos vs. Flordeliza Rivera.)

For resolution is a petition for review on certiorari assailing the Decision dated March 26, 2001,[1] which affirmed the validity of the issuance of a writ of possession in favor of respondent Flordeliza Rivera, and the Resolution dated September 5, 2001,[2] which denied the motion for reconsideration for lack of merit.

The facts are not disputed.

On June 30, 1993, petitioner Clarita L. Ramos and her husband, Rolando Nicolas, mortgaged to respondent a parcel of land in Bustos, Bulacan to secure a loan in the amount of P300,000.00. On November 5, 1993, petitioner mortgaged the same property to respondent to secure an additional loan of P100,000.00. Both mortgages were registered with the Register of Deeds.

On August 3, 1994, due to the non-payment of the loans, respondent caused the extrajudicial foreclosure of the mortgages in accordance with Act No. 3135.[3] Respondent emerged as the highest bidder. On August 4, 1994, the certificate of sale issued to respondent was registered with the Register of Deeds.

Petitioner failed to redeem the property during the redemption period. Respondent consolidated ownership over the property, and on August 8, 1995, a new certificate of title was issued in her name. Petitioner, however, refused to vacate the property, prompting respondent to file a petition for issuance of a writ of possession before the Regional Trial Court (RTC) of Malolos, Bulacan, Branch 15.

In an Order dated September 5, 1995, the RTC set respondent’s petition for hearing on October 16, 1995 at 8:30 in the morning. The RTC also directed that respondent, petitioner, the Register of Deeds of Bulacan, the Office of the Solicitor General, and, the Office of the Provincial Prosecutor of Bulacan be furnished with copies of said order, and that copies of the same be posted in the main entrance of the Provincial Capitol, the bulletin board of the RTC and in a conspicuous place at the Municipal Building of Bustos, Bulacan for at least three weeks prior to the date of the hearing. This notwithstanding, nobody appeared at the scheduled hearing. Respondent, upon motion, was then allowed to present evidence ex-parte. In an Order dated November 9, 1995, the RTC granted respondent’s application for a writ of possession.

Petitioner questioned the Order dated November 9, 1995 before the Court of Appeals contending that she was not summoned by the RTC in violation of her right to due process of law. Petitioner likewise assailed the constitutionality of Act No. 3135 for being contrary to the due process clause.

The Court of Appeals dismissed the appeal of petitioner. It noted that petitioner received a copy of the assailed order on September 12, 1995 but she nonetheless did not appear at the hearing on October 16, 1995 to interpose her objection. The appellate court reiterated the rule that “there can be no denial of due process where a party had the opportunity to participate in the proceedings but did not do so.”[4] It further stressed that under Section 7 of Act No. 3135, a petition for writ of possession shall be an ex-parte motion. The Court of Appeals also took into consideration that “a mortgagee who effects the extrajudicial foreclosure of the mortgage is entitled under the law to a writ of possession over the property foreclosed, it being the ministerial duty of the proper [RTC] to issue said writ upon the mortgagee’s ex parte application, even before the expiration of the redemption period provided by the law and the Rules of Court.”[5] Since respondent filed her petition after the expiration of the redemption period, there was even more reason to issue the writ.

As to the alleged unconstitutionality of Act No. 3135, the Court of Appeals observed that this was being raised for the first time on appeal, contrary to the rule that “the constitutional validity of a statutory provision should not be entertained by the Court where it was not specifically raised below, insisted upon and adequately argued.”[6] The appellate court likewise no longer deemed it necessary to pass upon the alleged unconstitutionality of the provision authorizing the ex parte issuance a writ of possession, considering that petitioner was duly notified of respondent’s petition. It ratiocinated that courts “will not pass upon a constitutional question unless it is the lis mota of the case or if the case can be disposed of on some other grounds, such as the application of the statue or general law.”[7]

Considering the allegations of the petition, the comment of respondent and the reply thereto filed by petitioner, the Court resolves to deny the petition.

As pointed out by respondent in her comment, the verification/certification appended to the petition was signed by Atty. Rosendo Tansinsin, Jr., and not by petitioner herself. Section 1, Rule 45 of the Rules of Court requires that a petition for review on certiorari should be verified by the party appealing.[8] Similarly, Section 5, Rule 7 provides that it is the plaintiff or principal party who should execute the certification against forum shopping.[9] While Atty. Tansinsin states that he is signing the verification/certification also as attorney-in-fact of petitioner, no proof has been presented to show that he was specially authorized by his client to do so. On this ground alone, the petition should be dismissed under Section 5, Rule 45 of the Rules of Court.

On the merits, the Court of Appeals committed no reversible error in rendering the Decision dated March 26, 2001 and the Resolution dated September 5, 2001. Petitioner maintains that Act No. 3135 is unconstitutional insofar as: first, extrajudicial foreclosure proceedings are not judicial in nature since a sheriff who proceeds with the same is not a competent court; and second, dispensing with personal notice to the mortgagor is violative of due process. She also insists that she was not furnished a copy of respondent’s petition for issuance of a writ of possession. These arguments are mere rehash of the points raised by petitioner before the appellate court, which were correctly and sufficiently addressed in the assailed Decision and Resolution. As such, the Court finds that the case at bar does not warrant the exercise of its discretionary appellate jurisdiction.

WHEREFORE, the petition for review on certiorari is DENIED.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

[1] RolIo, pp. 14-18.

[2] RoIlo, p. 23.

[3] An act to regulate the sale of property under special powers inserted in or annexed to real estate mortgages.

[4] Citing Development Bank of the Philippines vs. Court of Appeals, 302 SCRA 362.

[5] Citing Veloso vs. Intermediate Appellate Court, 205 SCRA 227.

[6] Citing Reyes vs. Court of Appeals, 320 SCRA 486.

[7] Citing Lalican vs. Vergara, 276 SCRA 518.

[8] SEC. 1. Filing of petition with Supreme Court. - A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth.

[9] SEC. 5. Certification against forum shopping. - The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. xxx