Mortgaged habitual residence and banruptcy afeter law 16/2022, of september 5

Abstract

The habitual residence may be subject to a mortgage lien. In such case, once bankruptcy has been declared, it is part of the assets of the same, although the mortgage creditor has a privilege of separate execution of the guarantee whenever the property is declared to be an asset not necessary for the continuation of the business or professional activity. However, it is possible that the secured creditor is affected by the creditors’ agreement, excluding separate execution or ending it. Likewise, it is possible that during the common phase of the bankruptcy, the habitual residence is subject to direct realization, dation in payment or dation for payment, at the request of the mortgage creditor or the bankruptcy administration, as the case may be. In the event that the bankruptcy is concluded through liquidation, it would not be possible to exclude from it the mortgaged habitual residence that has not been subject to separate execution. The part of the credit not satisfied through such collective execution would be subject to subsequent exoneration. If the debtor requested exoneration through a payment plan, and the guarantee had not been executed, it would be possible to restructure the mortgage debt and retain ownership of the asset. If the guarantee had already been executed, the part of the debt not covered by the execution would be submitted to the payment plan.