Sadly in most case, very little can be done, in general it comes to reaching an agreement with the bank requesting that the years granted for the mortgage loan be prolonged, to lower the monthly payments or to accept the property as payment for the debt etc. .It is also advisable to see if our case can benefit from Law 6/2012 which, as we stated in previous articles, can force certain banks to accept the dation in payment.
In my opinion, the current financial crisis is making judges, lawyers, etc. realize in one hand the complicated situation many families are going through, and on the other the abuse of the banks, largely responsible for this problem. Therefore most law professional are trying to interpreter the law as far as this is possible in a way that it will minimize any injustices.
As we previously stated in one of our last year articles the Regional Court of the Autonomous Spanish Community of Navarra – Second Section ruled in this respect stating in its Court Decision that regardless of the final value of the property at the auction, the appraisal (survey value) made by the bank at the time of granting the loan should be taken into account. Since the appraisal was much higher than the money owned, even though the property was auctioned for less than the debt, the Court understood that the bank had been paid
Today we want to echo a new Court Order of the Regional Court of Castellon, this time against Bankia, which according to the summary published in the web page of the Spanish Judiciary Authority is based on the following:
As it is known the assets and liabilities of Bancaja were transferred to Bankia who became the owner of the assets, contracts, debts, etc.
Bankia then requested enforcement and execution of default payment on a mortgage loan granted, but firstly the Court of First Instance and secondly the Regional Court of Castellon (Audiencia Provincial de Castellón) concluded that Bankia was not entitled to execute the mortgage as the names had not been changed in the Land Registry and the mortgage loan was still under Bancaja’s name.
Thus, the Court understands that while it is the proven truth that Bancaja transferred its credits to Bankia and therefore it is understood that Bankia is the creditor of the unpaid instalments of the mortgage loan; but in order for Bankia to be able to request to execute this mortgage loan it must first register the mortgage loan under its own name in virtue of articles 145, 149 and 150 among others of the Spanish Ley Hipotecaria. It is understood that Bankia is not authorized (legitimized) to start an execution process or get the property back because it has not made the relevant changes in the Land Registry stating that Bankia is now the new beneficiary / mortgagee of the said mortgage loan.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
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