Lawyer in Marbella inforning on dación en pago II
Mr. Félix Ruiz Peña, English speaking Spanish lawyer in Marbella, would like to set our some notes with regards to some notes on the so called Spanish “Dación en Pago”. Although the Spanish mortgage law in article 140 regulates a form of “lieu of payment” (dación en pago) (“Notwithstanding the provisions of Article 105, may validly be agreed in the Voluntary Mortgage Title Deed that the secured obligation becomes effective only upon the properties object of the mortgage // In this case, the liability of the debtor and creditor action, by virtue of the mortgage, will be limited to the value of the mortgaged property, and will not reach the other assets of the estate of the debtor …. “), however, it can only be agreed between the creditor before formalizing the loan. There must be very few people that in their papers equity loan have reflected this clause of Article 140 of the LH.
Arcos & Lamers Asociados, is leading English speaking law firm in Marbella specialized among other in Spanish Mortgage Law. Your business is in good hands at Arcos & Lamers Asociados, Spanish property lawyers. Your solicitors in Spain! Spanish Inheritance procedures and the granting of a Will in Spain are easy tasks for our firm as we are specialized in complex legal, accounting and tax processes in Spain.In recent months there have been a series of reactions in the Spanish legal field, reflecting the need to find ways to give to those families where all members are unemployed, with dependent children, a way to go out of this situation.
Pioneer was the Resolution (“Auto”) of the Audiencia Provincial de Navarra, Section 2 of December 17, 2010 where for the first time a court in reasoned decision concludes that the bank may not require the debtor an additional amount to compensate for the depreciation of the mortgaged property. The Court states that “the bank is adjudicating a property, which the same bank has valued with a higher amount than the amount granted on the loan, to save the topic of interest and costs.” The Court in Navarra concludes in the following demolishing terms, “we do not mean with this that the applicant entity is the cause of the economic crisis, but this entity can not ignore its bank status and therefore as a member of the financial system, which in whole and for the mismanagement of these financial institutions, definitely have resulted in an unprecedented crisis since the Great Depression of 1929”.
It is also very interesting the Resolution (“Auto”) of the Audiencia Provincial de Girona, Section 2 of September 16, 2011, where in similar terms come to say that the bank incurs in “abuse of law” and “unjust enrichment” when apply to continue with the execution of others assets of the debtor when the mortgaged property have been auctioned, and the result of the auction is insufficient to cover the credit. The Court understands that the creditor has already satisfied the credit with the product in the auction, in the case, is entering in the estate of the bank a property valued by the parties in an amount higher that the loan granted.
And how the Spanish mortgage law requires a profound change has been reflected in a report of a General Attorney in the Court of the European Union, following a preliminary question made by the Magistrate in the Spanish Mercantile Courts in Barcelona Mr Jose Maria Fernandez Seijo. The European Attorney leaves implied that the Spanish legislation infringes Community law evictions, due to the fact that the same dos not guarantee effective protection of consumers against unfair terms on mortgages documents. Let’s wait for the final decision of the Court of the European Union (TEU) on this preliminary question about our old Mortgage Law.
In these difficult times, it seems that the courts begin to sharpen the legal system in Spain, and providing of logical criteria to the “dacion en pago” as a way to repay the debt to the creditor, which in turn gives to us, the professionals of Arcos and Lamers Asociados, the right tools to combat forced situations initiated by the credit entities.
In the event that you need advice concerning the situation of your loan-mortgage with the bank, or your are thinking to apply a new loan with the bank, please do not hesitate to contact the English speaking Spanish lawyers and accountants in Marbella of Arcos & Lamers Asociados, lawyers in Spain and tax advisors in Marbella, we have an expert team ready to answer your questions and to provide legal and fiscal advice in Spain.
Approach the English speaking Spanish Lawyers of Arcos & Lamers Asociados for any legal, tax, labour and company advice you may need!.
Information with regards to bankruptcy proceedings in Spain may be found HERE.
Additional information on the so called “dación en pago” you may find HERE in a previouse post.
Mr. Féliz Ruiz Peña, English speaking Spanish lawyer in Marbella, Málaga, Costa del Sol, Spain.
Marbella, December, 2012.
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