LA CESIÓN DE CRÉDITOS GARANTIZADOS CON HIPOTECA: SUS REQUISITOS Y EFECTOS ENTRE LAS PARTES Y RESPECTO DE TERCEROS.

Abstract

Debt assignment is the operation whereby the right to collect a debt from some person is transferred, while the obligation remains the same. When the debt assigned is one secured by a mortgage, the mortgage security remains accessory to the central event, yet it still has a heavy influence on the assignment. The accessory nature of the mortgage security must be regarded as functional; i.e., between the debt and the mortgage there is a link based on the fact that the purpose of the mortgage right is to secure the debt. In order for a mortgage debt assignment to take place, a series of personal, real and formal requirements must all be present. These requirements are examined in this paper. Article 149.1 of the Mortgage Act was amended by Act 41/2007 establishing different procedures for the secured debt and for the mortgage; each of these is governed by its own law of trade when assignment is concerned. So, for the transfer of a secured debt, the act refers us to article 1526 of the Civil Code; and as regards the securing mortgage, the act lists the requirements necessary in order for the assignee to acquire title to the real right of mortgage: notarial deed and registration. The law does not contain any references to the delivery of notification of the assignment to the debtor, but this author feels that notification is still a necessary requirement in order to afford the debtor the possibility of objecting.