LIMITACIÓN DE LA RESPONSABILIDAD HIPOTECARIA: REVISIÓN DE LA EJECUCIÓN HIPOTECARIA Y DE LA DACIÓN EN PAGO EN EL CONTEXTO DE LA ACTUAL CRISIS ECONÓMICA.

Abstract

The article begins by addressing the current economic, financial and real estate crisis and the two-sided effect it has had, causing the mortgage market to pull in upon itself and swelling the number of property foreclosures. Hard data on both phenomena are evaluated and weighed against the real estate market's development since the early eighties. The present surge in mortgage defaults and foreclosures has fanned heated discussion about a possible revision of the rule of the borrower's unlimited personal liability and the possible imposition by law of surrender in lieu of payment with the effect of cancelling the entire debt. The arguments wielded in favour of the idea are analyzed in detail, as are the various court rulings that have endeavoured to apply it in practice, even without any change in the laws. By contrast, since 2008 sundry laws and regulations have been approved that endeavour to alleviate the situation of insolvent mortgage borrowers, either by preventing and avoiding insolvency or by palliating its effects once the borrower has become insolvent. These laws and regulations do not question the system of dual security (collateral plus personal guarantee), whose revision could come at a high price if as a result refinancing markets lose their faith in the system. A revision is proposed for several technical and legal features of surrender in lieu of payment, such as the foreclosure procedure (e.g., fostering of alternatives to court-enforced foreclosure, acceptance of electronic auctions, measures to bring more bidders to auctions, a special line of official credit for the winning bid, reduction of the deposit bidders are required to make in order to participate, re-appraisal of the mortgaged property to find the negative excess). The proposed revision pursues a two-pronged objective: to satisfy the plaintiff's claim without underselling the borrower's assets, thus achieving the institutional purpose of mortgage auctions as a means of realizing the value of mortgaged assets. And that purpose, pursuant to the objective sought in the European Commission's 2007 White Paper on the integration of primary and secondary mortgage markets in Europe, ought to be to fetch a fair price for the property while upholding a high degree of legal certainty in the mortgage system. Several of the measures suggested by the author are already being entertained by lawmakers.