SOBRE LA LIMITACIÓN DE LA RESPONSABILIDAD DEL HIPOTECANTE DEUDOR A LA FINCA HIPOTECADA. A VUELTAS CON EL AUTO 111/2010 DE LA AUDIENCIA PROVINCIAL DE NAVARRA.

Abstract

This paper looks at the decree of the Provincial Appellate Court of Navarra holding that, when a mortgaged property has been awarded to the lender as a consequence of the appropriate foreclosure, the foreclosing lender cannot take action against the borrower's assets to try and collect the remainder of the outstanding debt not covered by the sum fetched by selling the said property. In other words, the court contradicts the Civil Code, the Mortgage Act and the Code of Civil Procedure and affirms that the value of the property seized in foreclosure, regardless of the sum for which it was collateral, clears the primary obligation even if it fails to cover the primary obligation. Therefore, that places a limit on the borrower's liability for the mortgage or real liability. This stance neglects the personal liability of all borrowers (1911 Civil Code), which underlies any mortgage loan. The decision is criticized, and legal arguments for disagreement are given.