Can notification of a foreclosure lawsuit email?

ejecucion hipotecaria

The Constitutional Court declared invalid actions to the notification of a foreclosure lawsuit email

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When the parties do not act represented by counsel or this is the first summons or summons to the defendant, acts of communication must be made by reference to the address of the litigants, with delivery in paper documentation. It serves an electronic communication even if it is certified by the National Fabrica de la Moneda y Timbre.

This was stated by the Constitutional Court in its judgment of 27 February 2020, we discussed below.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

Banco Sabadell (BS) filed foreclosure lawsuit against Real Costa Sur S.L.. (ICS), to recover an unpaid loan. BS credit was given to Pera Designated Activity Company Assets (PADAC). It requested the Foreclosure on a storeroom in Eras de San José, in the town of Lorca, in claim 2.197'56 € of the principal of the loan impagado, plus interest and costs.

The Court of First Instance and Instruction No.. 3 Lorca, He issued an order on 20 April 2018 according the office of execution.

The 23 April 2018, electronic notifications service of Fabrica Nacional de Moneda y Timbre, mail sent to the electronic address ICS an email saying it had received a notice and:

"The Notice will be available in your E-Mail-only Outfitted from 23-042018 until 08-06-2018. If you do not proceed with the reading indicated within the corresponding effects will occur, under the applicable rules. "

Without ICS had agreed to enable the link in the previous message, electronic notification service sent a new mail indicating your mailbox:

Electronic Notifications Service reminds you notifications and / or communications uncollected in the Single Electronic Address of the holder Outfitted Euro Investment Real Estate Costa Sur, S.L.- B73258006 whose term ends next 08-06-2018 to 23:59.

The 8 June 2018, ICS staff agreed to the link.

Was issued by the FNMT an electronic certificate confirming that the message is made available to ICS the 23/04/2018 and he accepted the 08/06/2018.

The 25 June 2018, the procedural representative of ICS brought before the Court written opposition to the execution, claiming lis pendens, nullity of the execution for not liquidating the debts as agreed and secondarily the annulment by abusive clauses have practiced default interest.

He JPII nº 3 Lorca issued an order on 28 June 2018 ICS inadmitiendo opposition., understanding that the deadline had elapsed 10 days of the art. 695 the LEC.

In the car, the possibility of using replacement indicated resource within five days.

The procedural representation of ICS administrative appeal filed, understanding that the notice and demand payment, not occur when the mail arrives 23 April 2018 but when he agreed to the content of the notification 8 June 2018, with what the opposition was filed on time.

The Court issued an order on 29 August 2018 dismissing the administrative appeal, arguing the implementation of the Common Administrative Procedure Act (Law 39/2015), whose article 43.2 LPACAP says:

'The notifications by electronic means shall be deemed made in the time during accessing their content. When the notification by electronic means is mandatory, or has been expressly chosen by the applicant, it will be understood rejected when ten calendar days have elapsed since the provision of notification without you access to its content. '

For the Court, the notice is made available to the 23 April 2018 and when he presented the opposition 25 June within 10 days had expired.

At the foot of the car it said that decision was "final and against the same resource could not be any".

Amparo

ICS interpuso request for defense against the order of the JPII No.. 3 of Lorca 28 June 2018, who he refuses to admit the opposition to demand the execution and against the order of 29 August 2018 which dismissed the appeal lodged against the previous resolution.

He alleged infringement of the right to effective judicial protection (art. 24.1 EC) and a process with all the guarantees (art. 24.2 EC), on its site have been made as executed in the mortgage process reference via email forwarded by a notification service, and not by delivery of paper documentation at the headquarters of its registered office, first court case of its location in the cause. Also, in any case, the deadline should be counted from access to the content of the notification 8 June 2018 and not from the receipt of the mail 23 April 2018. That e allowed not know the content of the documentation, saying only that it has received notification and to provide a link to where you should go for consultation.

Article 155 LEC makes it clear that:

"When the Parties not represented by proxy or in the case of the first summons or summons to the defendant, acts of communication will be made by reference to the address of the litigants ".

As for the car that dismissed the administrative appeal, It rejected the court can base its decision on the Common Administrative Procedure Act, that is irrelevant to the civil process.

ICS asked to estimate the shelter, the annulment of both judgments was agreed upon and ordered that the proceedings to replace prior notification time. By "otrosí say" requested the suspension of the enforcement procedure.

The position of the Prosecutor

The prosecutor indicated that ICS complied with the procedural requirement exhaust the previous judicial to the shelter [art. 44.1 a) LOTC, because in the car that dismissed the administrative appeal stated that the resolution was firm and there was no appeal against it any. There was no filing a motion for dismissal of proceedings, because the alleged injury had already invoked in the letter of reconsideration against the first car. For Fiscal, the court executor should not do without in this case the personal notification, pursuant to the provisions of the standards cited (155 LEC) and the doctrine of STC 47/2019 in its legal basis 4. The application of an administrative rule by the court a quo was a second violation of the right to effective judicial protection (art. 24.1 EC).

Regarding the application for stay of execution, the Second Chamber of the Constitutional Court decided by order agreeing instead the notation demand.

The decision of the Constitutional Court

The TC shared the position of the prosecutor: It was not necessary to file a motion for dismissal of proceedings against the abovementioned order of 29 August 2018, because the injury had occurred with the previous resolution 28 June, denounced by the executed entity in its administrative appeal.

He also referred to the "doctrine of standing appeal of judgments":

"You can not require the justiciable, recipient of a unappealable judgment expressly considered by the body itself trial, that, bucking the auctoritas of the Court, go to a previously forbidden action for that instance [SSTC 202/2007, of 24 September, FJ 2; 4/2009, of 12 January, FJ 2, and 70/2017, of 5 June, FJ 2 b)].”

Therefore, the resource could not be regarded as premature. For the sake, the executive process can not be terminated until the literate of the administration of justice decreed the "complete satisfaction" of the performer (art. 570 LEC). So condition the filing of the request for defense of this fact, It generates an undue delay that would result in an additional burden or intensifying constitutional injury complaint.

Doctrine of the Constitutional Court

La primera comunicación debe hacerse por emplazamiento personal del demandado o ejecutado en procesos regidos por la Ley de Enjuiciamiento Civil, sin que pueda ser sustituida por una comunicación electrónica. Y ello es así tanto para personas físicas como jurídicas (STC 6/2019 of 17 January), por aplicación de lo dispuesto en el artículo 155.1 LEC.

El incumplimiento de este deber de emplazamiento personal y su realización alternativa por vía electrónica con base en normas ajenas, tales como las que regulan el régimen de notificaciones en procedimientos no judiciales, acarrea por tanto la conculcación de aquel derecho fundamental (STC 47/2019 of 8 April).

In summary, el TC estimó la demanda. El Juzgado incumplió su deber de emplazar al ejecutado de manera personal en su domicilio social y con entrega en papel de la documentación necesaria que le permitiese defenderse de la manera que considerase oportuna. La notificación electrónica mediante un simple aviso en el buzón virtual que la ejecutada tenía dado de alta para relacionarse con la administración pública no sirve para dar por notificada una demanda en los Tribunales de Justicia.

Se vulneró también el derecho a obtener una resolución fundada: No cabe la aplicación de la Ley 39/2015 del procedimiento administrativo común al ámbito civil.

Se declaró la nulidad de los dos autos recurridos, retrotrayéndose las actuaciones al momento anterior al emplazamiento defectuoso de la demandada, teniendo que volver a realizarse de forma ajustada a derecho.

 

Lo que hemos visto en esta entrada,  le permitirá defenderse en caso de que la primera notificación haya sido realizada por correo electrónico en un procedimiento civil. No obstante, teniendo en cuenta lo breve de los plazos, le recomendamos que se asesore mediante un foreclosure attorney.

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