Guía para defenderse de una ejecución hipotecaria

ejecucion hipotecaria

We review the main points to fend off foreclosure

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During the last quarter of 2017, more of 5.000 homes were subject to enforcement hipotecaria.Si it is true that the number of foreclosures on homes fell usual around 50 % (following the dynamics of previous years), be immersed in a foreclosure process is never tasteful dish.

A fin de cuentas, what is at stake is that one is thrown out of his house, without even ensured that this would go to break free of the mortgage loan. Also, the nature of these processes involves a huge challenge to win them, so that usually uses techniques to slow them down and win some time.

That's why we wrote this guide to fend off foreclosure, in which we explained what exactly foreclosure and what are our chances of protecting.

Go ahead the best way to fend off foreclosure is as soon as possible to contact a lawyer specializing in real estate law. Lines of defense in these cases are complex and very short deadlines.

What is a foreclosure

Foreclosure is the process by which the payment of a secured loan is required by mortgage. These processes are characterized by a limitation of the causes of opposition and suspension, for its speed and facilitate the collection to the creditor.

Must understand that, foreclosure being a protection mechanism guaranteed credit, the system is very favorable to the creditor. Which does not mean that some Judges have echoed the dramatic situation for many families has meant banking practice.

Thus, the law makes it very clear who should benefit this special procedure for recovery. However, jurisprudential trend has been easing this favoring the bank, to protect consumers.

As an example, We can cite the No. Auto 111/2010 2nd Section of the Provincial Court of Navarre, of 17 December. In the matter, BBVA had been awarded a home mortgage for less than appraised value, so he claimed the portion not covered by the auction.

AP denied the claim, under the argument that the bank itself had accepted that assessment and had been involved in the depreciation of the real estate market, so it could not require the borrower to compensate such a depreciation.

F.D.º 4th.-<<although formally it derrick understand that the Bank's performance conforms to the letter of the law and actually have the right to request what you requested, so you would understand that there would be no abuse of rights which he is charged, but it nevertheless does not cease to ask ourselves a reflection, at least morally unsettling>>.

Namely: although the Bank's adjusted to the law, resulted morally rejectable, which he led the Court denied their right to claim the difference between the appraised value and the depreciated value.

Foreclosure may fall on different objects. However, This guide focuses on real estate. So we refer to archetypical case where a citizen or a couple applying for a loan by mortgaging your home and, can not afford to pay fees at any given time, They are demanded by the bank.

Scheme foreclosure

To provide an overview of the functioning of foreclosure, we offer this script, which will be developed and supplemented later.

The requirements so you can raise a foreclosure lawsuit are:

  1. There is a Mortgage. The mortgage is a guarantee that is on a good or right (in this case, on a house), in case if the debtor fails to make given (in this case, payment of the loan installments). In that case, the system allows the creditor to make the mortgage itself. For this, the procedure employed herein narrated.
  2. Incurred in non-payment of fees. Payment must miss, at least, three installments so that the bank can terminate the contract and raise the demand for foreclosure.

A complaint has been filed, to be notified in the home of the defendants, they have a period of just 10 days to contest the claim.

In its notice of opposition must record all their arguments, because then you can not enter the not adduced for reasons of legal certainty. An exception to this point is the abusiveness of clauses of the mortgage loan, whose appreciation, according to European law, should not be subject to preclusive deadlines.

The opposition You can result in suspension of execution, provided it is done based on the reasons set out in the Code of Civil Procedure (onwards, LEC). Solved the incident opposition, end or continue the process.

Should continue, the mortgaged property will be subject to judicial auction. The most common is that the housing auctioned is awarded to the bank, after settling the costs and interest, determine the total amount of debt.

After the award, the eviction of those executed will be brought. The truth is that it is possible to apply for extensions or benefit from protective measures such as those contained in the Second Chance Act. However, At this point the bank is already housing.

Note that, if the borrower is an entrepreneur or mortgaged property is not a home, the rate of foreclosure will present certain peculiarities. At the time he will face the same.

Regulation of foreclosure

Foreclosure is regulated in arts. 681 and following the LEC. This regulation is novel, because it no longer contained in the Mortgage Law (hereinafter LH), although its special character survives.

Specialties foreclosure

Foreclosure is exercised directly against the mortgaged property. Specific provisions apply when it was valued at writing, and an address thereof consist debtor notification purposes an email address where receive electronic.

These specific provisions are as follows:

  • The value of the appraisal will serve as type for auction, you can not drop 75 % thereof.
  • Results,,tl,applicable the principle according to which when an act is offered in intentional unity as an efficient cause of the later the nullity of the first must transcend it,,es,since the cause is manifested in the joint intentionality of both contracts,,es,As a consequence of this position,,es,the Provincial Court reiterated the ruling it had made in the judgment of,,es,where argued,,es,Without the first contract and the losses that originated, the entire economic-financial operation would be rendered meaningless.,,es,also integrated by subsequent contracts,,es,These were causally linked to the former by virtue of a functional link,,es competent to hear the foreclosure processes the Court of First Instance of where lies the farm. If you settle on various judicial districts, decide including the applicant.
  • hold the passive standing the debtor and third mortgagees or holders.
  • It will send payment require the defendant in the same car for which is authorized and dispatched execution, unless the creditor proves to have required the payment of court. The notification will attempt in the defendant's domicile, performed by publication of rulings should be possible.
  • To initiate foreclosure, necessary provide mortgage registration in the Register. The registrar shall record in marginal note that it has extended certification domain and loads, after which you can not cancel the mortgage except for execution or order of the court clerk.
  • Should the mortgage and had been canceled or did not exist, the court clerk to issue a decree ending the execution.
  • the procedure shall be notified to the debtor who had not made payment requirement.
  • The debtor must wait 10 days from the payment request to ask to be conferred the administration or interim possession warranty. This way, endorses the rents and fruits. This administration must be notified to the occupant of the property, warning that the administrator must make payments should the owner. Administration or interim possession should not exceed two years, and the administrator shall be accountable to the court clerk so that it can be continued execution.
  • after 20 days Following these notifications and payment requirements, at the request of actor, debtor or third holder shall auction the mortgaged property. general rules apply to LEC auction. The declaration of insolvency of the debtor suspends auction, resumed if the bankruptcy judge decides that the goods are not required to continue trading.
  • One time awarded good, the auction price will apply to payment of principal the insured credit, of accrued interest and costs incurred. If there was a excess, shall be deposited to third parties subsequent rights holders or the owner will be given.
  • If the product insufficient to cover credit, the performer could continue execution, under the principle of universal liability, by channels arranged in the LEC.

Failure originating from foreclosure

Special rules for foreclosure can be applied, the debtor default in the event that their duty is paid in installments, It must be equivalent (in time or amount) three months.

By contractual agreement, You can alter this amount, While the clause will be abusive when harm to the debtor. Understand the jurisprudence that is abusive establish a level below the amount represented by three months installments. Also, if such amount is ridiculous compared to the total volume of mortgage, the clause could still be considered abusive.

In these cases, It can be agreed that the nonpayment assume the full maturity of debt. This procedure followed, the creditor will allow the debtor to release the good of the auction consigning money due plus interest.

Permit is not necessary in cases where the mortgaged property is the principal residence del deudor, which may be included to release their debt auction also well, even without the consent of the creditor.

This ability to release good auction You can exercise without a first time. It can also be repeated on whenever they pass at least three years between the date of release and the next payment requirement.

Grounds for opposition to foreclosure

As already indicated, opposition to foreclosure or suspension of the same reasons obey priced. In particular, the debtor may oppose execution in the following cases:

  1. When the guarantee was extinct. This point is evidenced by registration certification.
  2. When incorrectly determined the amount. To test this end, the debtor must submit the balance that contradicts the figure indicated by the performer.
  3. When the contractual clause where enforcement is based or to determine the amount due out abusive.

In all these cases, The clerk suspends execution and appearance calls the parties, Period for 15 alleging days and documented as deem appropriate. The Court agreed as it deems car in two days.

If the auto deemed the opposition, will send the Process discontinuance, or quantify debt again. These statements are actionable appeal.

As improper because of opposition to foreclosure, the LEC sets Third party domain, accredited by reliable property title predate the Constitution guarantee (Registration Certificate). The admission of this demand suspend the execution of the affected property, was continued with the rest procedure.

The LEC also allows suspend foreclosure criminal prejudicialidad. In this case, It must prove the existence of a criminal case on "facts of criminal appearance that determine the falsity of title, invalidity or unlawfulness of the office of execution ".

No other reason suspends foreclosures. This is stipulated in art. 698 LEC, when you have, specifically that:

<<including [claims] that deal with invalidity of title or maturity, assurance, extinction or amount of the debt, They are ventilated in court corresponding, without ever producing the effect of suspending or hinder the procedure laid down in this Chapter>>.

What most that enables the law is to request the withholding of all or part of it to be delivered to the creditor. It is the prerogative of the Court (by an Order) retention agree or not this amount.

Suspension of foreclosure

Note that the Code of Civil Procedure, when adjusting the suspension of operation, leaves out foreclosure, this follow its own regime. Therefore, in principle the suspension is excluded by:

  • Filing and admission of the application for revision or rescission of default judgment.
  • Of an action when the executive action can cause damage difficult to repair.
  • insolvency situation executed.
  • Criminal prejudicialidad.

In the case of foreclosures, the difference between two causes doctrine opposition, which are already mentioned:

  • The own reasons for opposition, including the extinction of the mortgage, credit or disagreement with the balance claimed.
  • The improper motives opposition, including the third party with domain and criminal prejudicialidad.

pretrial stage of claim

The adventure to get rid of foreclosure starts before reaching the courts. Being a private debt, nothing prevents renegotiates, so it is advisable to hire the services of a lawyer and try some of the strategies that are going to relate.

The truth is that the privileged nature of this procedure and evidence of their cause often all you can do is buy time to improve the economic situation or negotiate an exit.

Thus,the assistance of a lawyer is essential. On the one hand, because the only solution may pass by agreeing with the bank. And on the other hand, because any settlement could have procedural consequences. For example, the bank could use to claim an IOU. Which could hinder escape the subsequent execution or impossible claims, for example, for unjust enrichment.

To contact the bank, he can offer a number of alternatives to foreclosure. Overall, These alternatives can benefit both Contracting. The lender increases your chances for recovery, while the borrower does not lose your home.

The debt restructuring reduces interest rates or extend repayment periods while the loan remains in force. Course, the main obstacle to overcome is the will of the lender.

Another option is negotiable Refinance Debt. It is likely that the bank is showing unfavorable, since the execution has already missed the payment of the principal debt. However, providing other collateral (for example, un guarantor), You can request a second loan, to cover the second.

The refinancing option is most effective when done in view of the breach, but before it occurs. This is because lets go to another lender, offering affordable financing conditions, and transmit credit.

If you want to see in a simpler way, This possibility is the same as applying for a loan that allows us to amortize that we will renege, and can be paid more comfortably. Thereby, We can settle debts with the bank whose shares are higher. Probably we increase the repayment period and the overall price of the loan, but we will save the situation.

By the way, a very similar option is called short selling, by which we deliver the house to a third party is subrogated to our mortgage position. The problem with this option is that we lose housing, but in return we ensure be free of debt with the bank.

Another agreement that can be pursued is a removes or remission. The truth is that it is the best option for the executed and, thus, the worst for the bank. Accordingly, it is very difficult to access the same. However, it is easier to accept the entity establish a lack of payments, which they will give some time to run, although they will do so at the expense of increasing interest due.

Payment in kind

Involves the delivery of housing in exchange for the loan satisfied understand. The payment for the unpaid It is an accepted practice, although not specifically regulated in the Civil Code. However, breaks the principle of identity payment, so that you can not force the bank to accept the house to extinguish the mortgage.

However, if the bank admitted payment in kind, then you can not claim the amount exceeding the assessment that he made. Provincial Courts and repeatedly stipulated in Sentences, such as Navarre 17 December 2010, and Girona 16 September 2011, as well as pronouncements of Courts of First Instance, as the No. 8 Valladolid, that 27 February 2.012 foreclosure stopped considering that the bank obtained an unjustified benefit.

dation (or assignment) for payment

Regulated in art. 1.175 CC, the The gift for solving involves the transfer of housing for the creditor manage and dispose in order to collect the loan. The difference with payment in kind is that it does not involve a transfer of ownership. In this case, the bank remains free to accept or reject the transfer, but its effects are only reach up to the amount obtained from the sale. Therefore, if money left over after the sale of housing, the bank will return it to the owner, but he lacked money, the debt will persist in that amount.

A nice, trading possibilities there are dozens, but we insist that it is important to do it the hand of a mortgage law attorney. So we made sure to choose the best option, and do not get in the way stones if it gets worse in the future.

procedural stage of the complaint

If we failed to reach any agreement and the bank is willing to apply for foreclosure, following the LEC itself, we have the following options.

1.- Prove that the guarantee or credit itself already extinct or never existed

In principle, this is the most viable defense strategy. The mortgage guarantee has never existed it will be virtually impossible. Yes it could happen that would have made the payment and the bank did not have consciousness, but it will also be rare.

Therefore, the lines that if followed are to plead limitation or revocation of Bank action.

Generally, the prescription usually it happens when the bank is unable to properly document your claim. The prescription is a legal institution that makes, past its deadline, an action may not be exercised. However, whenever this term is interrupted (for example, through a claim burofax), your computer begins to run from the beginning. The limitation period of mortgage shares is 20 years old, according to art. 1964 CC.

For his part, the expiration It is a similar legal institution, in the sense that after his term, the right to which it applies can not be enforced. The difference with the requirement that each interruption is still counting the days that remain, so the time prove to be shorter.

In the procedural area, the expiration of the instance occurs when two years there is no procedural activity, counting them since the last notification to the parties and always being in the first instance. However, for what concerns us here, we must remember that no expiration occurs instance running, within the meaning of art. 239 LEC:

<<The provisions of the preceding articles shall not apply in the proceedings for enforcement.

These actions will continue until compliance with the court, although they have run out of course during the periods specified in this Title>>.

2.- Prove that on the mortgaged property rights existed prior domain.

In any case, banks are careful not constitute mortgage loans and mortgaged property. This is one of the reasons why mortgages are in the Land Registry, so that they are public.

However, in the case of registered domain rights exist prior to the mortgage, It could raise an opposition based on Third party domain.

3.- Prove that the good should be the subject of a preliminary ruling in the criminal.

En realidad, in this way we can only get the executive process is suspended. Which can make us gain time, if we are interested. A preliminary ruling is one that is conducted on a related element in order to be competitive foreclosure of other jurisdictional (in our case, criminal).

This means that the opposition will proceed this way when there is a criminal case on facts of criminal appearance, from which he could derive the falsity of title or invalidity or unlawfulness of the office of execution.

Therefore, this means of defense is virtually unusable, it would enter penal field, which would lengthen, encarecería and complicate the dispute. It provided no criminal evidence clearly concur that the Act refers. Then, we should consider whether to file the corresponding complaint.

4.- Prove that the amount we claim is incorrect.

Technically, is called pluspetición the bank claim for higher amount due. Course, It is based on an error (voluntary or not) mathematical. Therefore, defense using this approach depends on effectively the bank is demanding more than your share.

It will be executed who must prove that the lending institution has requested more than necessary. Being an incident opposition, the costs to be imposed on the bank are limited to the extra party requesting. Ultimately, this line of defense serves to defend what is ours, but saves us the hassle of having to go through judicial seat.

However, It is interesting that sometimes can be used without strict accounting errors come. It is the case decided by the AP Murcia 9 September 2010. In the matter, foreclosure he stopped by this strategy, as the Court found that the bank had acted unfairly by waiting too for your claim, which increased interest. Therefore, It resulted from the application theory delay unfair.

F.D.º 1.-<<The doctrine of delay unfair, of progeny Teutonic, It has been repeatedly applied by this section, appreciating its concurrence where prolonged inertia or passivity, or late exercise of a right arises on the other side, on legitimate expectation, confidence that the plaintiff had declined ejercicio.Su this configuration as a hypothesis of abnormal juridicity, breach of good faith, It comes off the doctrine and jurisprudence construction of Figure>>.

5.- Prove that the claim is based on an unfair term.

When executed has the status Consumer and User, the General Law on Protection of Consumers and Users (LGDCU) establishes a protection regime which removes unfair terms. have such status, according to its art. 3:

<<natural persons acting for purposes outside their business, business, trade or profession [Y …] legal persons and entities without legal personality acting non-profit in a foreign field to a trade or business>>.

The art. 83 This standard determines the nullity of unfair terms, which are conceptualized in art. 82 and, particularly, those under art. 85 to the 90. Not to enter into a long list of unfair terms, we will focus on the most common

Unfair terms most frequently mortgages are introduced into the floor clauses, the early repayment and default interest. However, any clause, resulting abusive, determine the price increase mortgage, It would be ideal to oppose the execution by this route.

These unfair terms should be brought in opposition to the execution, although the judge should look for this type of clausulado. In this sense, both the Court of Justice of the European Union and the Supreme Court have acknowledged that the allegation or appreciation of the abusiveness of clauses is not subjected to time-limits.

The acceleration clauses empower banks to resolve the credit to certain defaults. Cuando ese impago no se determina o es inferior a res mensualidades, la cláusula deviene nula por abusiva. En este sentido se pronunció el Tribunal Supremo, en Sentencia n.º 705/2015, of 23 December:

<<it seems clear that an early repayment clause that allows the resolution to the breach of a single term, even partially and for an accessory obligation, It must be esteemed as abusive, dado que no se vincula a parámetros cuantitativa o temporalmente graves>>.

Namely, incluso respetando el mínimo de tres cuotas para demandar, podría observarse la abusividad de la cláusula cuando la cantidad impagada resultara insignificante para el negocio.

Las archiconocidas ground clauses, meanwhile, limitaron las fluctuaciones de tipos de interés de tal modo que los prestatarios acabaron pagando más intereses de los legítimos. Aunque la cláusula no es abusiva por sí misma, la jurisprudencia ha declarado su nulidad por falta de transparencia. En este sentido se pronuncia el Tribunal Supremo en Sentencia n.º 705/2015, of 23 December, que acabaría siendo la punta de lanza de este tipo de procedimientos:

<<el control de transparencia, as an abstract parameter validity of the clause prearranged, namely, fuera del ámbito de interpretación general del Código Civil delerror propio” the “error vicio”, cuando se proyecta sobre los elementos esenciales del contrato tiene por objeto que el adherente conozca o pueda conocer con sencillez tanto la “carga económica” que realmente supone para él el contrato celebrado, namely, la onerosidad o sacrificio patrimonial realizada a cambio de la prestación económica que se quiere obtener, como la carga jurídica del mismo, namely, la definición clara de su posición jurídica tanto en los presupuestos o elementos típicos que configuran el contrato celebrado, como en la asignación o distribución de los riesgos de la ejecución o desarrollo del mismo>>.

Last, the cláusula de intereses de demora no es necesariamente abusiva. Pero si el interés fijado es desproporcionadamente alto, contravendrá el art. 85.6 del TRLDGCU. Therefore, el interés de demora debe alcanzar un máximo de tres veces el interés legal del dinero, ex art. 114 LH. On the other hand, la Sentencia del Tribunal Supremo n.º 364/2016, of 3 June, señala:

<<el límite de la abusividad lo fijamos en dos puntos por encima del interés remuneratorio pactado. La nulidad de cláusula abusiva no da lugar a unareducción conservativadel incremento del tipo de interés que supone la cláusula de interés de demora considerada abusiva hasta el límite admisible, sino su eliminación total>>.

6.- Alleging the lack of standing.

Recently, muchas entidades de crédito han sido absorbidas por otras, o se han fusionado. También ha habido muchos casos de transmisiones patrimoniales. The problem is that, al transmitir la titularidad de una hipoteca, la entidad adquiriente debería inscribir esta transmisión en el Registro de la Propiedad.

However, esta inscripción tiene un coste, por lo que algunas entidades se ahorraron la inscripción en su día, y ahora reclaman judicialmente créditos hipotecarios que en el Registro de la Propiedad constan inscritos a nombre de otras entidades.

Aunque los bancos suelan atribuirse legitimación para reclamar créditos hipotecarios basándose en su condición de “sucesores universales”, lo cierto es que la inscripción registral es un requisito sine qua non para realizar este tipo de reclamaciones.

En este sentido se pronunció la Sección 11ª de la Audiencia Provincial de Barcelona, en Auto n.º 91/2013, of 16 May.

F.D.º 4th.- <<la ejecución directa contra los bienes hipotecados sólo podrá ejecutarse como realización de una hipoteca inscrita, en base a los extremos contenidos en el título inscrito, y es claro que en el título inscrito en que se apoya la demanda ejecutiva no figura la que promueve la ejecución, por lo que carece de legitimación según el propio título en que se apoya la ejecución solicitada>>.

F.D.º 5th.-<<Cuestión distinta es la cesión de la garantía hipotecaria que a tenor del art. 149 LH precisa su constancia en escritura pública e inscripción registral. Su razón de ser radica en que la ejecución sobre los bienes hipotecados se apoya en la hipoteca inscrita, art. 130 LH título ejecutivo que fija la posición de las partes en el proceso ejecutivo, art. 517; 538; 685 LEC. Por lo que la falta de inscripción de la cesión conlleva la desestimación del recurso al no poder seguirse la ejecución instada por quien no es parte en el proceso según el título.

Ciertamente el art. 540 LEC contempla la sucesión procesal. However, el sucesor del que figure como ejecutante en el título deberá acreditarlo con documento fehaciente>>.

Consult an attorney

Las estrategias relatadas son las más utilizadas en los casos de ejecución hipotecaria. However, a mortgage law attorney podrá dirigir por más caminos tanto la negociación extrajudicial como la defensa procesal.

Hence, aunque las indicaciones de esta guía sirvan para entender mejor el procedimiento de ejecución hipotecaria, la mejor opción es acudir a un especialista en cuanto se sepa que va a haber problemas para seguir pagando las cuotas de la hipoteca.

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