Nulidad de ejecución hipotecaria por falta de comunicación

 invalidity foreclosure

Miscommunication foreclosure can lead to the annulment of the procedure

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This issue has pronounced sentence 168/2019, of 31 January 2019, in which the Supreme Court upheld the appeal filed by the business entity Inversiones Subascán S.L.. against sentence 12 April 2016 Section 4 of the Provincial Court of Cantabria and declared the nullity of the execution procedure cash on mortgaged property.

Antecedentes

The company Inversiones Subascan S.L., He filed for annulment of the mortgage proceedings at the request of Banco Popular,   for not having received any notification.

The business entity alleged that the Bank knew that “the office execution could be notified at the address of site manager at La Pereda No.. 8 low, Santander, as it stated in the documents in the mortgage application under No.. 12 a) and 12 b) and the 14 a) and 14 b).

The defendant bank objected and argued that the applicant did not act diligently in that it did not carry out the process of change of address for proper notification in accordance with the provisions of art. 683.1 in relation to art. 683.2 LEC.

Primera Instancia

The judgment of first instance dismissed the lawsuit alleging that there was no procedural irregularity in communication acts carried out and the lack of diligence of care of the defendant does not have to harm the defendant bank.

Provincial Court

appeal was filed by the applicant and the 4th Section of the Audiencia Provincial de Santander he dismissed the appeal and upheld the first instance judgment.

The Court held that the last address was not listed either in writing or mortgage registration nor has the commercial applicant notifies the defendant a change of address for notification purposes.

Supreme Court

appeal was filed by the applicant trade. The main purpose of this resource focused on whether there has been violation of the rules governing acts of communication in the process of foreclosure.

“The appellant alleges infringement of Articles. 225.3 LEC, 238 LOPJ in relation to the arts. 155 , 686 and 691.2 LEC and breach of art. 24 EC , by failing to notify the execution office or call auction at the address stated in the documents produced by the performer in its application at that address since the bank had successfully different notifications.”

various judgments were cited to justify the cassation interest, and specifically the STS 144/2014, of 13 March is paramount for the doctrine that is collected from the room.

“The judgment which the appeal seeks opposes the jurisprudence of the Supreme Court. Así la STS, Civil Division, 846/1993, of 24 July 1993, appeal 1046/1996, It summarizes the constitutional jurisprudence concerning the citation edictal. Correspondingly, the STS, Civil Chamber, 144/2014, of 13 March, appeal 755/2012, jurisprudence collects on the requirement of correct performance of the communication events. Also, la STS, Civil Chamber 825/2013, of 13 March 2014, appeal 11/2012 , points out that the alternative, according to constitutional jurisprudence must have the summons or citation edictos, Finally, the judgment of the TC, First Chamber, 104/2008, amparo 2754/2005 , who work in cars having been provided with the application brief regular exercise judgment in the action for annulment of the procedure for execution on monetary mortgaged property. the reasons discussed together are estimated, their complementarity.”

“Ground that the applicant foreclosure, in extra-procedural communication, had sent communications to your administrator executed and society in street Pereda No.. 8 (Bar La Tertulia), which they were received, signing receipt Dña. Natividad , in both cases, It established that the applicant knew and which no notifications interested in the foreclosure process, unknown whether it was intentionally or negligently, but based on this documentation it has clearly made efforts for notification were not enough, especially when such documentation was available to the applicant, that contributed, and the court itself. Such communications burofax, They were submitted by the People's Bank 2012 and notifications made in the foreclosure process they were in 2013, namely, on dates that the applicant knew the site address at Bar La Tertulia, and in which notifications were not interested in the foreclosure process so in accordance with Art. 225.3 LOPJ , in relation to arts. 155 , 686 , and 691.2 LEC , the application is annulment of the foreclosure process 120/2013 the Court of First Instance No.. 7 Santander, given helplessness created in part executed, so for this purpose it is estimated the appeal, issuing new sentence which fully considers the lawsuit.”

Namely, the Bank knew the address where you could notify executed, prior to enforcement proceedings, address he not informed the Court. So the Supreme Court rules in favor of the applicant and house the judgment under appeal, declaring annulment of foreclosure proceedings.

Ultimately, a foreclosure proceeding, Failure to comply with the rules on acts of communication You can lead to invalid.

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