Acquisition of property in the auction and charges
How previous cargoes that acquires a property in the auction affect?
The Supreme Court has ruled on this issue in its judgment of 19 July 2016.
La mercantil Itaipu Trade S.L. (hereinafter IT) He won in court auction a property with a mortgage letter. He paid off the mortgage and claimed that amount to the original debtor, under the law of the third party making the payment (art. 1158 Civil Code) or by way of subrogation provided for in Article 668.3 the LEC.
Unable to an amicable settlement, IT filed suit against the Hereditary Community Don Nicolas, claiming the amount paid by the first the Bank Holy Spirit to cancel the mortgage on the estate acquired at auction.
The defendants opposed the demand, claiming that It was mistaking the derivative loan debt with the mortgage liability, without it being application or the case of payment by a third, nor existed unjust enrichment.
Court No. 5 Santiago de Compostela gave judgment on 22 September 2011, rejecting the demand and imposing costs on IT.
Le applicant brought an appeal before the Court.
The Sixth Section of the Provincial Court of A Coruña in Sentence 30 September 2013 He dismissed the appeal, condemning the appellant to pay the costs.
So things, IT brought extraordinary resources for procedural infringements and a cassation to the Supreme Court.
The main reason for the appeal alleged by IT is the infringement of the doctrine of the Supreme Court by the acquisition of a mortgaged property, also entails the successful tenderer subrogation in mortgage debt guaranteed and supports his thesis on the SSTS of 20 June 1997 and 30 January 1999.
The High Court rejects the plea.
The Supreme Court clarified the doctrine on this issue in its judgment of 11 May 2006:
«[…] It is to accept that plea, for the "third" buyer at auction is not the "third mortgage" to which refers art. 34 LH , it is the good faith belief that participates in it, Art. 114 LH , as the principle of advertising translation, and "non-applicability" of art. 32, so that it only responds to the actual load consisting mortgage, and not other personal charges the debtor, unsecured, no scope to such third parties, as, as indicated art. 114, its obligations are limited, in addition to account for the principal due, only the payment also of interest, in principle, of the 2 last years, and the losing party of the current annuity, unless otherwise agreed, in which case you can not be secured by mortgage interest payments for longer period to five years; mandate is reiterated in art. 146 of the law itself , according to, although the mortgagee can repeat (if they have not been paid) for overdue interest, whatever the time had verified the reinstatement of capital, so good, as the third party interested in such property (as is the third holder thereof, in good faith, successful bidder in the auction, it's who can harm such repetition), guarantee shall not exceed the amount claimed by it in accordance with the said Article 114 '.
"Subsequently, and according to the reform carried out in that Article by Law 1/2000, number six of the final disposal ninth , Articles 668.3 and 670.5 the LEC, delve into the line indicated stressing not only the continuity of the system in relation to subsistence loads and prior liens, but also subrogation limiting effect with respect to such encumbrances without reaching the debt or obligation secured: "The bidder admits and agrees to be subrogated to the liability of those". So according to the rules itself forecast, delimiting the scope of efectum iuris in the legal subrogation, subrogation occurs with respect to the load and not on debt ensures that such a burden, namely, subrogation under the precept, It happens on the duty to support real nature of the forced realization of good credit to meet the insured and not necessarily assume the position of the debtor in the obligational object of the mortgage security relationship. "
Ultimately, subrogation of the purchaser of a mortgaged property occurs with regard to cargo and not on debt.