ASSIGNMENT OF MORTGAGE CREDITS AND LAND REGISTER. LEGITIMACY OF FORECLOSURE

Abstract

The registration of the assignments of mortgages, especially following its reform by Ley de Modernización del Mercado Hipotecario de 2007, has generated a problem in practice to be analyzed and specified. In this paper we aim to deal with one of these issues, related, in essence, with the special constitutive nature or not of the self registration of the mortgage and assignment nature. Specifically, we will stop at the analysis of whether it is possible to urge the foreclosure proceeding by a creditor transferee not entered in the Register. Lately, this problem has arisen in the context of bank mergers, where a comprehensive succession of the loan portfolio of the acquiring entity occurs, raising the question of whether the new creditor assignee may or may not foreclose the mortgage, without being registered as the owner in the Land Registry. It is a current subject, although it has already been mentioned by the doctrine, continues to generate judgments, meaning that seems appropriate to pause to think about it, to settle a common approach.