PRESENTE Y FUTURO DE LA GARANTÍA HIPOTECARIA.

Abstract

Mortgages as security are being threatened by a number of different factors. If no solutions are found, the only thing left to do will be to change the way collateral works. From the lender's viewpoint, mortgages are not as efficient as they used to be, because of the acceptance of privileged loans, tacit mortgages, bankruptcy situations that freeze foreclosure and doubts about the constitutionality of the foreclosure procedure. From the borrower's side, mortgages are widely regarded as a tool of abuse for financial institutions, and borrowers espouse the idea of surrendering the mortgaged object in lieu of payment, as a way of forcibly extinguishing the debt. Mortgages have made it possible for millions of citizens to buy their own property. If we want to keep mortgages from tapering off toward disuse, we must boost lenders' and borrowers' confidence in mortgages. Lenders' confidence must be boosted by making mortgages as collateral and the mortgage foreclosure procedure effective; borrowers' confidence must be won by eliminating abusive practices and clauses from mortgage loan agreements. In this context, the function property registrars play is essential. Property registrars must stop abusive clauses from being registered and therefore being applied in foreclosure. Mandatory acceptance of collateral in payment of debt would be extremely harmful for the economy as a whole and mortgages in particular, but there is nothing standing in the way of taking measures to encourage voluntary surrender in lieu of payment and procedural instruments binding the lender to the appraisal. Nor is there anything stopping the use of solutions for exceptional cases only, in which certain insolvent borrowers or borrowers under the exclusion threshold may be released from their debt with surrender of the property.